Common use of Noteholder Collateral Agent Clause in Contracts

Noteholder Collateral Agent. (a) The Company hereby appoints Wilmington Trust, National Association to act as Noteholder Collateral Agent, and the Noteholder Collateral Agent shall have the privileges, powers and immunities as set forth herein and in the Collateral Agreements. The Company and the Guarantors hereby agree that the Noteholder Collateral Agent shall hold the Collateral in trust for the benefit of all of the Holders and the Trustee, in each case, pursuant to the terms of the Collateral Agreements and the Noteholder Collateral Agent is hereby authorized to execute and deliver the Collateral Agreements. (b) Subject to Section 7.01, neither the Trustee nor the Noteholder Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Collateral Agreements, for the creation, perfection, priority, maintenance, sufficiency or protection of any Second-Priority Lien, or for any defect or deficiency as to any such matters, or, except in the case of gross negligence or willful misconduct, for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Second-Priority Liens or Collateral Agreements or any delay in doing so. (c) Subject to the terms of the Collateral Agency Agreement and the Intercreditor Agreement, if any, the Noteholder Collateral Agent will be subject to such directions as may be given it by the Trustee (acting at the written direction of the Holders of a majority in principal amount of the Notes) from time to time (as required or permitted by this Indenture). (d) At all times when the Trustee is not itself the Noteholder Collateral Agent, the Company will deliver to the Trustee copies of all Collateral Agreements delivered to the Noteholder Collateral Agent and copies of all documents delivered to the Noteholder Collateral Agent pursuant to the Collateral Agreements.

Noteholder Collateral Agent. (a) The Company hereby appoints Wilmington Trust, National Association Trust Company to act as Noteholder Collateral Agent, and the Noteholder Collateral Agent shall have the privileges, powers and immunities as set forth herein and in the Collateral Agreements. The Company and the Guarantors hereby agree that the Noteholder Collateral Agent shall hold the Collateral in trust for the benefit of all of the Holders and the Trustee, in each case, pursuant to the terms of the Collateral Agreements and the Noteholder Collateral Agent is hereby authorized to execute and deliver the Collateral Agreements. (b) Subject to Section 7.01, neither the Trustee nor the Noteholder Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Collateral Agreements, for the creation, perfection, priority, maintenance, sufficiency or protection of any Second-Priority Lien, or for any defect or deficiency as to any such matters, or, except in the case of gross negligence or willful misconduct, for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Second-Priority Liens or Collateral Agreements or any delay in doing so. (c) Subject to the terms of the Collateral Agency Agreement and the Intercreditor Agreement, if any, the The Noteholder Collateral Agent will be subject to such directions as may be given it by the Trustee (acting at the written direction of the Holders of a majority in principal amount of the Notes) from time to time (as required or permitted by this Indenture). Except as directed by the Trustee as required or permitted by this Indenture or as required or permitted by the Collateral Agreements, the Noteholder Collateral Agent will not be obligated: (i) to act upon directions purported to be delivered to it by any other Person; (ii) to foreclose upon or otherwise enforce any Second-Priority Lien; or (iii) to take any other action whatsoever with regard to any or all of the Second-Priority Liens, Collateral Agreements or Collateral. (d) The Noteholder Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Second-Priority Liens or the Collateral Agreements. (e) In acting as Noteholder Collateral Agent, the Noteholder Collateral Agent may rely upon and enforce for its own benefit each and all of the rights, powers, immunities, indemnities and benefits of the Trustee under Article 7 hereof, each of which shall also be deemed to be for the benefit of the Noteholder Collateral Agent. (f) At all times when the Trustee is not itself the Noteholder Collateral Agent, the Company will deliver to the Trustee copies of all Collateral Agreements delivered to the Noteholder Collateral Agent and copies of all documents delivered to the Noteholder Collateral Agent pursuant to the Collateral Agreements.

Noteholder Collateral Agent. (a) The Company Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints Wilmington Trustthe Noteholder Collateral Agent as its agent under this Indenture, National Association the Collateral Agreement, the Security Documents and the Intercreditor Agreement and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Noteholder Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Collateral Agreement, the Security Documents and the Intercreditor Agreement and to exercise such powers and perform such duties as are expressly delegated to the Noteholder Collateral Agent by the terms of this Indenture, the Collateral Agreement, the Security Documents and the Intercreditor Agreement, together with such powers as are reasonably incidental thereto. The Noteholder Collateral Agent agrees to act as such on the express conditions contained in this Section 10.11. The provisions of this Section 10.11 are solely for the benefit of the Noteholder Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 10.03. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Agreement, the Security Documents and the Intercreditor Agreement, the Noteholder Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein, nor shall the Noteholder Collateral Agent have or be deemed to have any fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Agreement, the Security Documents and the Intercreditor Agreement or otherwise exist against the Noteholder Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Noteholder Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. Except as expressly otherwise provided in this Indenture, the Noteholder Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Noteholder Collateral Agent is expressly entitled to take or assert under this Indenture, the Collateral Agreement, the Security Documents and the Intercreditor Agreement, including the exercise of remedies pursuant to Article Six, and any action so taken or not taken shall be deemed consented to by the Trustee and the Holders. (b) The Noteholder Collateral Agent may execute any of its duties under this Indenture, the Security Documents or the Intercreditor Agreement by or through agents, employees, attorneys-in-fact or through its Related Persons and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Noteholder Collateral Agent shall not be responsible for the negligence or misconduct of any agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made without negligence or willful misconduct. (c) None of the Noteholder Collateral Agent, any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own negligence or willful misconduct) or under or in connection with the Collateral Agreement, any Security Document or Intercreditor Agreement or the transactions contemplated thereby (except for its own negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any Grantor or Affiliate of any Grantor, or any officer or Related Person thereof, contained in this or any Indenture, or in any certificate, report, statement or other document referred to or provided for in, or received by the Noteholder Collateral Agent under or in connection with, this or any other Indenture, the Collateral Agreement, the Security Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this or any other Indenture, the Collateral Agreement, the Security Documents or the Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Collateral Agreement, the Security Documents or the Intercreditor Agreement to perform its obligations hereunder or thereunder. None of the Noteholder Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this or any other Indenture, the Collateral Agreement, the Security Documents or the Intercreditor Agreement or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates. (d) The Noteholder Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex, or telephone message, statement, or other document or conversation believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to any Grantor), independent accountants and other experts and advisors selected by the Noteholder Collateral Agent. The Noteholder Collateral Agent shall be fully justified in failing or refusing to take any action under this or any other Indenture, the Security Documents or the Intercreditor Agreement unless it shall first receive such advice or concurrence of the Trustee as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Noteholder Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this or any other Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request or consent of the Trustee and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders. (e) The Noteholder Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Noteholder Collateral Agent shall have received written notice from the Trustee or a Grantor referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Noteholder Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article Six (subject to Section 10.11); provided, however, that unless and until the Noteholder Collateral Agent has received any such request, the Noteholder Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable. (f) U.S. Bank National Association and its respective Affiliates (and any successor Noteholder Collateral Agent and its affiliates) may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with any Grantor and its Affiliates as though it was not the Noteholder Collateral Agent hereunder and without notice to or consent of the Trustee. The Trustee and the Holders acknowledge that, pursuant to such activities, U.S. Bank National Association or its respective Affiliates (and any successor Noteholder Collateral Agent and its affiliates) may receive information regarding any Grantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of any such Grantor or such Affiliate) and acknowledge that the Noteholder Collateral Agent shall not be under any obligation to provide such information to the Trustee or the Holders. Nothing herein shall impose or imply any obligation on the part of the U.S. Bank National Association (or any successor Noteholder Collateral Agent) to advance funds. (g) The Noteholder Collateral Agent may resign at any time upon thirty (30) days prior written notice to the Trustee and the Grantors, such resignation to be effective upon the acceptance of a successor agent to its appointment as Noteholder Collateral Agent. If the Noteholder Collateral Agent resigns under this Indenture, the Trustee, subject to the consent of the Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), shall appoint a successor Noteholder Collateral Agent. If no successor noteholder collateral agent is appointed prior to the intended effective date of the resignation of the Noteholder Collateral Agent (as stated in the notice of resignation), the Noteholder Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor noteholder collateral agent. If no successor noteholder collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Noteholder Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor noteholder collateral agent hereunder, such successor noteholder collateral agent shall succeed to all the rights, powers and duties of the retiring Noteholder Collateral Agent, and the term “Noteholder Collateral Agent Agent” shall have mean such successor noteholder collateral agent, and the privilegesretiring Noteholder Collateral Agent’s appointment, powers and immunities duties as set forth herein and in the Collateral Agreements. The Company and the Guarantors hereby agree that the Noteholder Collateral Agent shall hold be terminated. After the retiring Noteholder Collateral in trust for Agent’s resignation hereunder, the provisions of this Section 10.11 (and Section 10.13) shall continue to inure to its benefit of all of the Holders and the Trustee, in each case, pursuant retiring Noteholder Collateral Agent shall not by reason of such resignation be deemed to the terms of the Collateral Agreements and be released from liability as to any actions taken or omitted to be taken by it while it was the Noteholder Collateral Agent is hereby authorized to execute and deliver the Collateral Agreements. (b) Subject to Section 7.01, neither the Trustee nor the Noteholder Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Collateral Agreements, for the creation, perfection, priority, maintenance, sufficiency or protection of any Second-Priority Lien, or for any defect or deficiency as to any such matters, or, except in the case of gross negligence or willful misconduct, for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Second-Priority Liens or Collateral Agreements or any delay in doing so. (c) Subject to the terms of the Collateral Agency Agreement and the Intercreditor Agreement, if any, the Noteholder Collateral Agent will be subject to such directions as may be given it by the Trustee (acting at the written direction of the Holders of a majority in principal amount of the Notes) from time to time (as required or permitted by under this Indenture). (d) At all times when the Trustee is not itself the Noteholder Collateral Agent, the Company will deliver to the Trustee copies of all Collateral Agreements delivered to the Noteholder Collateral Agent and copies of all documents delivered to the Noteholder Collateral Agent pursuant to the Collateral Agreements.

Noteholder Collateral Agent. (a) The Company Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints Wilmington Trustthe Noteholder Collateral Agent as its agent under this Indenture, the Collateral Agreement, the Security Documents and the Intercreditor Agreement and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Noteholder Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Collateral Agreement, the Security Documents and the Intercreditor Agreement and to exercise such powers and perform such duties as are expressly delegated to the Noteholder Collateral Agent by the terms of this Indenture, the Collateral Agreement, the Security Documents and the Intercreditor Agreement, together with such powers as are reasonably incidental thereto. The Noteholder Collateral Agent agrees to act as such on the express conditions contained in this Section 10.11. The provisions of this Section 10.11 are solely for the benefit of the Noteholder Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 10.03. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Agreement, the Security Documents and the Intercreditor Agreement, the Noteholder Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein, nor shall the Noteholder Collateral Agent have or be deemed to have any fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Agreement, the Security Documents and the Intercreditor Agreement or otherwise exist against the Noteholder Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Noteholder Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. Except as expressly otherwise provided in this Indenture, the Noteholder Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Noteholder Collateral Agent is expressly entitled to take or assert under this Indenture, the Collateral Agreement, the Security Documents and the Intercreditor Agreement, including the exercise of remedies pursuant to Article Six, and any action so taken or not taken shall be deemed consented to by the Trustee and the Holders. (b) The Noteholder Collateral Agent may execute any of its duties under this Indenture, the Security Documents or the Intercreditor Agreement by or through agents, employees, attorneys-in-fact or through its Related Persons and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Noteholder Collateral Agent shall not be responsible for the negligence or misconduct of any agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made without negligence or willful misconduct. (c) None of the Noteholder Collateral Agent, any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own negligence or willful misconduct) or under or in connection with the Collateral Agreement, any Security Document or Intercreditor Agreement or the transactions contemplated thereby (except for its own negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any Grantor or Affiliate of any Grantor, or any officer or Related Person thereof, contained in this or any Indenture, or in any certificate, report, statement or other document referred to or provided for in, or received by the Noteholder Collateral Agent under or in connection with, this or any other Indenture, the Collateral Agreement, the Security Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this or any other Indenture, the Collateral Agreement, the Security Documents or the Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Collateral Agreement, the Security Documents or the Intercreditor Agreement to perform its obligations hereunder or thereunder. None of the Noteholder Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this or any other Indenture, the Collateral Agreement, the Security Documents or the Intercreditor Agreement or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates. (d) The Noteholder Collateral Agent shall be entitled to conclusively rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, facsimile, or telephone message, statement, or other document or conversation believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to any Grantor), independent accountants and other experts and advisors selected by the Noteholder Collateral Agent. The Noteholder Collateral Agent shall be fully justified in failing or refusing to take any action under this or any other Indenture, the Security Documents or the Intercreditor Agreement unless it shall first receive such advice or concurrence of the Trustee as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Noteholder Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this or any other Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request or consent of the Trustee and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders. (e) The Noteholder Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Noteholder Collateral Agent shall have received written notice from the Trustee or a Grantor referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Noteholder Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article Six (subject to Section 10.11); provided, however, that unless and until the Noteholder Collateral Agent has received any such request, the Noteholder Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable. (f) ▇▇▇▇▇ Fargo Bank, National Association and its respective Affiliates (and any successor Noteholder Collateral Agent and its affiliates) may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with any Grantor and its Affiliates as though it was not the Noteholder Collateral Agent hereunder and without notice to act or consent of the Trustee. The Trustee and the Holders acknowledge that, pursuant to such activities, ▇▇▇▇▇ Fargo Bank, National Association or its respective Affiliates (and any successor Noteholder Collateral Agent and its affiliates) may receive information regarding any Grantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of any such Grantor or such Affiliate) and acknowledge that the Noteholder Collateral Agent shall not be under any obligation to provide such information to the Trustee or the Holders. Nothing herein shall impose or imply any obligation on the part of the ▇▇▇▇▇ Fargo Bank, National Association (or any successor Noteholder Collateral Agent) to advance funds. (g) The Noteholder Collateral Agent may resign at any time upon thirty (30) days prior written notice to the Trustee and the Grantors, such resignation to be effective upon the acceptance of a successor agent to its appointment as Noteholder Collateral Agent. If the Noteholder Collateral Agent resigns under this Indenture, the Trustee, subject to the consent of the Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), shall appoint a successor Noteholder Collateral Agent. If no successor noteholder collateral agent is appointed prior to the intended effective date of the resignation of the Noteholder Collateral Agent (as stated in the notice of resignation), the Noteholder Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor noteholder collateral agent. If no successor noteholder collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Noteholder Collateral Agent shall be entitled to petition a court of competent jurisdiction at the expense of the Issuer to appoint a successor. Upon the acceptance of its appointment as successor noteholder collateral agent hereunder, such successor noteholder collateral agent shall succeed to all the rights, powers and duties of the retiring Noteholder Collateral Agent, and the term “Noteholder Collateral Agent Agent” shall have mean such successor noteholder collateral agent, and the privilegesretiring Noteholder Collateral Agent’s appointment, powers and immunities duties as set forth herein and in the Collateral Agreements. The Company and the Guarantors hereby agree that the Noteholder Collateral Agent shall hold be terminated. After the retiring Noteholder Collateral in trust for Agent’s resignation hereunder, the provisions of this Section 10.11 (and Section 10.13) shall continue to inure to its benefit of all of the Holders and the Trustee, in each case, pursuant retiring Noteholder Collateral Agent shall not by reason of such resignation be deemed to the terms of the Collateral Agreements and be released from liability as to any actions taken or omitted to be taken by it while it was the Noteholder Collateral Agent is hereby authorized to execute and deliver the Collateral Agreements. (b) Subject to Section 7.01, neither the Trustee nor the Noteholder Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Collateral Agreements, for the creation, perfection, priority, maintenance, sufficiency or protection of any Second-Priority Lien, or for any defect or deficiency as to any such matters, or, except in the case of gross negligence or willful misconduct, for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Second-Priority Liens or Collateral Agreements or any delay in doing so. (c) Subject to the terms of the Collateral Agency Agreement and the Intercreditor Agreement, if any, the Noteholder Collateral Agent will be subject to such directions as may be given it by the Trustee (acting at the written direction of the Holders of a majority in principal amount of the Notes) from time to time (as required or permitted by under this Indenture). (d) At all times when the Trustee is not itself the Noteholder Collateral Agent, the Company will deliver to the Trustee copies of all Collateral Agreements delivered to the Noteholder Collateral Agent and copies of all documents delivered to the Noteholder Collateral Agent pursuant to the Collateral Agreements.

Noteholder Collateral Agent. (a) The Company Trustee and each of the Holders by acceptance of the Securities hereby designates and appoints Wilmington Trustthe Noteholder Collateral Agent as its agent under this Indenture, National Association the Collateral Agreement, the Security Documents and the Intercreditor Agreement and the Trustee and each of the Holders by acceptance of the Securities hereby irrevocably authorizes the Noteholder Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Collateral Agreement, the Security Documents and the Intercreditor Agreement and to exercise such powers and perform such duties as are expressly delegated to the Noteholder Collateral Agent by the terms of this Indenture, the Collateral Agreement, the Security Documents and the Intercreditor Agreement, together with such powers as are reasonably incidental thereto. The Noteholder Collateral Agent agrees to act as such on the express conditions contained in this Section 10.10. The provisions of this Section 10.10 are solely for the benefit of the Noteholder Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 10.03. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Agreement, the Security Documents and the Intercreditor Agreement, the Noteholder Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein, nor shall the Noteholder Collateral Agent have or be deemed to have any fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Agreement, the Security Documents and the Intercreditor Agreement or otherwise exist against the Noteholder Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Noteholder Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. Except as expressly otherwise provided in this Indenture, the Noteholder Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the privilegesNoteholder Collateral Agent is expressly entitled to take or assert under this Indenture, powers and immunities as set forth herein and in the Collateral AgreementsAgreement, the Security Documents and the Intercreditor Agreement, including the exercise of remedies pursuant to Article 6, and any action so taken or not taken shall be deemed consented to by the Trustee and the Holders. The Noteholder Collateral Agent may execute any of its duties under this Indenture, the Collateral Agreement, the Security Documents or the Intercreditor Agreement by or through agents, employees, attorneys-in-fact or through its Related Persons and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Noteholder Collateral Agent shall not be responsible for the negligence or misconduct of any agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made without negligence or willful misconduct. None of the Noteholder Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its or their own gross negligence or willful misconduct) or under or in connection with the Collateral Agreement, any Security Document or Intercreditor Agreement or the transactions contemplated thereby (except for its or their own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company or any Grantor or Affiliate of any Grantor, or any officer or Related Person thereof, contained in this or any Indenture, or in any certificate, report, statement or other document referred to or provided for in, or received by the Noteholder Collateral Agent under or in connection with, this or any other Indenture, the Collateral Agreement, the Security Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this or any other Indenture, the Collateral Agreement, the Security Documents or the Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Collateral Agreement, the Security Documents or the Intercreditor Agreement to perform its obligations hereunder or thereunder. None of the Noteholder Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this or any other Indenture, the Collateral Agreement, the Security Documents or the Intercreditor Agreement or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates. The Noteholder Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex, or telephone message, statement, or other document or conversation believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to any Grantor), independent accountants and other experts and advisors selected by the Noteholder Collateral Agent. The Noteholder Collateral Agent shall be fully justified in failing or refusing to take any action under this or any other Indenture, the Security Documents or the Intercreditor Agreement unless it shall first receive such advice or concurrence of the Trustee as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Noteholder Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this or any other Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request or consent of the Trustee and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders. The Noteholder Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Noteholder Collateral Agent shall have received written notice from the Trustee or a Grantor referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Noteholder Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 (subject to Section 10.10); provided, however, that unless and until the Noteholder Collateral Agent has received any such request, the Noteholder Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable. Wilmington Trust FSB and its respective Affiliates (and any successor Noteholder Collateral Agent and its affiliates) may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with any Grantor and its Affiliates as though it was not the Noteholder Collateral Agent hereunder and without notice to or consent of the Trustee. The Trustee and the Guarantors hereby agree Holders acknowledge that, pursuant to such activities, Wilmington Trust FSB or its respective Affiliates (and any successor Noteholder Collateral Agent and its affiliates) may receive information regarding any Grantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of any such Grantor or such Affiliate) and acknowledge that the Noteholder Collateral Agent shall hold not be under any obligation to provide such information to the Collateral in trust for Trustee or the benefit of all Holders. Nothing herein shall impose or imply any obligation on the part of the Holders and the Trustee, in each case, pursuant to the terms of the Collateral Agreements and the Noteholder Collateral Agent is hereby authorized to execute and deliver the Collateral Agreements. Wilmington Trust FSB (b) Subject to Section 7.01, neither the Trustee nor the Noteholder Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Collateral Agreements, for the creation, perfection, priority, maintenance, sufficiency or protection of any Second-Priority Lien, or for any defect or deficiency as to any such matters, or, except in the case of gross negligence or willful misconduct, for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Second-Priority Liens or Collateral Agreements or any delay in doing so. (c) Subject to the terms of the Collateral Agency Agreement and the Intercreditor Agreement, if any, the Noteholder Collateral Agent will be subject to such directions as may be given it by the Trustee (acting at the written direction of the Holders of a majority in principal amount of the Notes) from time to time (as required or permitted by this Indenture). (d) At all times when the Trustee is not itself the successor Noteholder Collateral Agent, the Company will deliver ) to the Trustee copies of all Collateral Agreements delivered to the Noteholder Collateral Agent and copies of all documents delivered to the Noteholder Collateral Agent pursuant to the Collateral Agreementsadvance funds.

Noteholder Collateral Agent. (a) The Company hereby appoints Wilmington Trust, National Association to act as Noteholder Collateral Agent, and the Noteholder Collateral Agent shall have the privileges, powers and immunities as set forth herein and in the Collateral Agreements. The Company and the Guarantors hereby agree that the Noteholder Collateral Agent shall hold the Collateral in trust for the benefit of all of the Holders and the Trustee, in each case, pursuant to the terms of the Collateral Agreements and the Noteholder Collateral Agent is hereby authorized to execute and deliver the Collateral Agreements. (b) Subject to Section ‎Section 7.01, neither the Trustee nor the Noteholder Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Collateral Agreements, for the creation, perfection, priority, maintenance, sufficiency or protection of any Second-Priority Lien, or for any defect or deficiency as to any such matters, or, except in the case of gross negligence or willful misconduct, for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Second-Priority Liens or Collateral Agreements or any delay in doing so. (c) Subject to the terms of the Collateral Agency Agreement and the Intercreditor Agreement, if any, the Noteholder Collateral Agent will be subject to such directions as may be given it by the Trustee (acting at the written direction of the Holders of a majority in principal amount of the Notes) from time to time (as required or permitted by this Indenture). (d) At all times when the Trustee is not itself the Noteholder Collateral Agent, the Company will deliver to the Trustee copies of all Collateral Agreements delivered to the Noteholder Collateral Agent and copies of all documents delivered to the Noteholder Collateral Agent pursuant to the Collateral Agreements.

Noteholder Collateral Agent. (a) The Company hereby appoints Wilmington TrustBy accepting a Security, National Association each Holder shall be deemed to have irrevocably appointed the Noteholder Collateral Agent to act as its agent under the Security Documents and the Intercreditor Agreement and to have irrevocably authorized the Noteholder Collateral AgentAgent to (i) perform the duties and exercise the rights, powers (b) The Noteholder Collateral Agent is authorized and the empowered to appoint one or more subagents or co-collateral agents as it deems necessary or appropriate. (c) The Noteholder Collateral Agent shall have all the privileges, powers rights and immunities as set forth herein and protection provided in the Collateral Agreements. The Security Documents as well as the rights and protections afforded to the Trustee in Sections 7.02 and 7.07; provided, however, that the Company and the Guarantors hereby agree that shall not reimburse any expense or indemnify against any loss, liability or expense incurred by the Noteholder Collateral Agent shall hold the Collateral in trust for the benefit of all of the Holders and the Trustee, in each case, pursuant to the terms of the Collateral Agreements and through the Noteholder Collateral Agent is hereby authorized to execute and deliver the Collateral AgreementsAgent's own willful misconduct, gross negligence or bad faith. (bd) Subject to Section 7.01, neither none of the Trustee nor Trustee, the Noteholder Collateral Agent nor or any of their respective officers, directors, employees, attorneys or agents will shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Collateral AgreementsSecurity Documents, for the creation, perfection, priority, maintenance, sufficiency or protection of any Second-Priority Lien, Lien securing the Security or for any defect or deficiency as to any such matters, or, except in the case of gross negligence or willful misconduct, for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Second-Priority Liens or Collateral Agreements or any delay in doing so. (ce) Subject to the terms of the Collateral Agency Agreement and the Intercreditor AgreementSecurity Documents, if any, the Noteholder Collateral Agent will be subject to such directions except as may be given it directed by the Trustee (acting at the written direction of the Holders of a majority in principal amount of the Notes) from time to time (as required or permitted by this Indenture), the Holders acknowledge that the Noteholder Collateral Agent shall not be obligated: (1) to act upon directions purported to be delivered to it by any other Person; (2) to foreclose upon or otherwise enforce any Lien securing the Securities; or (3) to take any other action whatsoever with regard to any or all Liens securing the Securities, the Security Documents, the Intercreditor Agreement or the Collateral. (df) At all times when the Trustee is not itself In acting as Noteholder Collateral Agent, co-collateral agent or sub-collateral agent, the Noteholder Collateral Agent, each co-collateral agent and each sub-collateral agent may rely upon and enforce each and all of the Company will deliver to rights, powers, immunities, indemnities and benefits of the Trustee copies of all Collateral Agreements delivered to the Noteholder Collateral Agent and copies of all documents delivered to the Noteholder Collateral Agent pursuant to the Collateral Agreements.under Article 7. SECTION

Noteholder Collateral Agent. (a) The Company hereby appoints Wilmington Trust, National Association to act as provisions of this Section 12.09 are solely for the benefit of the Noteholder Collateral AgentAgent and none of the Trustee, any of the Holders, the Company nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Noteholder Collateral Agent in accordance with the provisions of this Indenture and the Collateral Agreements, and the exercise by the Noteholder Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Collateral Agreements, the duties of the Noteholder Collateral Agent shall be ministerial and administrative in nature, and the Noteholder Collateral Agent shall not have the privilegesany duties or responsibilities, powers and immunities as except those expressly set forth herein and in the Collateral Agreements. The Company and the Guarantors hereby agree that the Noteholder Collateral Agent shall hold the Collateral in trust for the benefit of all of the Holders and the Trustee, in each case, pursuant other documents to the terms of the Collateral Agreements and which the Noteholder Collateral Agent is hereby authorized a party, nor shall the Noteholder Collateral Agent have or be deemed to execute have any trust or other fiduciary relationship with the Trustee, any Holder, the Company or any Guarantor, and deliver no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the Collateral AgreementsAgreements or otherwise exist against the Noteholder Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term "agent" in this Indenture with reference to the Noteholder Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. (b) Subject to Section 7.01, neither the Trustee nor the The Noteholder Collateral Agent nor may perform any of their respective officersits duties under this Indenture and the Collateral Agreements by or through receivers, directorsagents, employeesemployees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties, attorneys and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon, any advice or agents will opinion given by legal counsel. The Noteholder Collateral Agent shall not be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Collateral Agreements, for the creation, perfection, priority, maintenance, sufficiency or protection of any Second-Priority Lien, or for any defect or deficiency as to any such matters, or, except in the case of gross negligence or willful misconductmisconduct of any receiver, for any failure to demandagent, collect, foreclose employee or realize upon or otherwise enforce any of the Secondattorney-Priority Liens or Collateral Agreements or any delay in-fact that it selects as long as such selection was made in doing sogood faith. (c) Subject to the terms None of the Collateral Agency Agreement and the Intercreditor Agreement, if any, the Noteholder Collateral Agent will or any of its respective agents, employees, or attorneys-in-fact shall (i) be subject liable for any action taken or omitted to such directions be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct as may determined by a court of competent jurisdiction in a final and non-appealable decision) or under or in connection with any Collateral Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable decision), or (ii) be given it responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company or any Guarantor or Affiliate of any Guarantor, or any Officer thereof, contained in this Indenture or the Collateral Agreements, or in any certificate, report, statement or other document referred to or provided for in, or received by the Noteholder Collateral Agent under or in connection with, this Indenture or the Collateral Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture or the Collateral Agreements, or for any failure of the Company or any Guarantor or any other party to this Indenture or the Collateral Agreements to perform its obligations hereunder or thereunder. None of the Noteholder Collateral Agent or any of its respective agents, employees, or attorneys-in-fact shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance by the Company or any Guarantor of any of the agreements contained in, or conditions of, this Indenture or the Collateral Agreements or to inspect the properties, books, or records of the Company or any Guarantor or any of their respective Affiliates. (acting at d) The Noteholder Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the written direction proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Company or any Guarantor), independent accountants and other experts and advisors selected by the Noteholder Collateral Agent. The Noteholder Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Noteholder Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Collateral Agreements in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes. (e) The Noteholder Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Noteholder Collateral Agent shall have received written notice from time the Trustee or the Company referring to time (as required or permitted by this Indenture, describing such Default or Event of Default and stating that such notice is a "notice of default." The Noteholder Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 hereof or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 12.09). (df) At all times when The Noteholder Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is not itself owned by the Company or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Noteholder Collateral Agent's Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or any portion of the Company will deliver or any Guarantor's property constituting Collateral intended to be subject to the Trustee copies Lien and security interest of all the Collateral Agreements delivered has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the Noteholder Collateral Agent discretionary rights, authorities and copies of all documents delivered powers granted or available to the Noteholder Collateral Agent pursuant to this Indenture or any Collateral Agreement other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the Notes or as otherwise provided in the Collateral Agreements. (g) No provision of this Indenture or any Collateral Agreement shall require the Noteholder Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Holders or the Trustee if it shall not have received indemnity from the Holders satisfactory to the Noteholder Collateral Agent against potential costs and liabilities incurred by the Noteholder Collateral Agent relating thereto. Notwithstanding anything to the contrary contained in this Indenture or the Collateral Agreements, in the event the Noteholder Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Noteholder Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the mortgages or take any such other action if the Noteholder Collateral Agent has determined that the Noteholder Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances unless the Noteholder Collateral Agent has received security or indemnity from the Holders in an amount and in a form all satisfactory to the Noteholder Collateral Agent in its sole discretion, protecting the Noteholder Collateral Agent from all such liability. The Noteholder Collateral Agent shall at any time be entitled to cease taking any action described above if it no longer reasonably deems any indemnity, security or undertaking from the Company or the Holders to be sufficient. (h) The Noteholder Collateral Agent (i) shall not be liable for any action taken or omitted to be taken by it in connection with this Indenture and the Collateral Agreements or instrument referred to herein or therein, except to the extent that any of the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct, (ii) shall not be liable for interest on any money received by it except as the Noteholder Collateral Agent may agree in writing with the Company (and money held in trust by the Noteholder Collateral Agent need not be segregated from other funds except to the extent required by law) and (iii) may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Noteholder Collateral Agent shall not be construed to impose duties to act.