Common use of Second Lien Collateral Agent Clause in Contracts

Second Lien Collateral Agent. (a) The Second Lien Trustee and each of the holders of the Notes, by acceptance of the Notes, hereby designates and appoints the Second Lien Collateral Agent as its agent under the Note Documents and the Second Lien Trustee and each of the holders of the Notes, by acceptance of the Notes, hereby irrevocably authorizes the Second Lien Collateral Agent to take such action on its behalf under the provisions of the Note Documents and to exercise such powers and perform such duties as are expressly delegated to the Second Lien Collateral Agent by the terms of the Note Documents, and consents and agrees to the terms of the Intercreditor Agreements and each Second Lien Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Second Lien Collateral Agent agrees to act as such on the express conditions contained in this Section 13.08. The provisions of this Section 13.08 are solely for the benefit of the Second Lien Collateral Agent and none of the Second Lien Trustee, any of the holders of the Notes nor any of the Issuers or Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.03. Each holder of the Notes agrees that any action taken by the Second Lien Collateral Agent in accordance with the provision of the Note Documents, and the exercise by the Second Lien Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all holders of the Notes. Notwithstanding any provision to the contrary contained elsewhere in the Note Documents, the duties of the Second Lien Collateral Agent shall be ministerial and administrative in nature, and the Second Lien Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Note Documents to which the Second Lien Collateral Agent is a party, nor shall the Second Lien Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Second Lien Trustee, any holder of the Notes or any Issuer or Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into the Note Documents exist against the Second Lien Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Second Lien 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) The Second Lien Collateral Agent may perform any of its duties under the Note Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates, (a “Related Person”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in good faith and in accordance with the advice or opinion of such counsel. The Second Lien Collateral Agent shall not be responsible for the negligence or misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made with due care. (c) None of the Second Lien 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 any Note Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable judgment) or under or in connection with any Second Lien Collateral Document or Intercreditor Agreement 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, non-appealable judgment), or (ii) be responsible in any manner to any of the Second Lien Trustee or any holder of the Notes for any recital, statement, representation, warranty, covenant or agreement made by any Issuer or Guarantor or Affiliate of any Issuer or Guarantor, or any Officer or Related Person thereof, contained in this Indenture, or any other Note Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Second Lien Collateral Agent under or in connection with, any of the Note Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of any of the Note Documents, or for any failure of any Issuer or Guarantor or any other party to any of the Note Documents to perform its obligations hereunder or thereunder. None of the Second Lien Collateral Agent or any of its respective Related Persons shall be under any obligation to the Second Lien Trustee or any holder of the Notes to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, any of the Note Documents or to inspect the properties, books, or records of any Issuer or Guarantor or any Affiliates of any Issuer or Guarantor. (d) The Second Lien Collateral Agent shall be entitled to rely, and shall be fully protected in relying, in good faith 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 proper Person or Persons, and upon advice and statements of legal counsel, independent accountants and other experts and advisors selected by the Second Lien Collateral Agent. The Second Lien 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 Second Lien Collateral Agent shall be fully justified in failing or refusing to take any action under any Note Document unless it shall first receive such advice or concurrence of the Second Lien Trustee as it determines. The Second Lien Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under the Note Documents in accordance with a request, direction, instruction or consent of the Second Lien Trustee. (e) The Second Lien Collateral Agent shall not be deemed to have notice of any Default or Event of Default unless a Trust Officer of the Second Lien Collateral Agent has actual knowledge thereof or unless written notice of any event which is in fact such a Default or Event of Default is received by the Second Lien Collateral Agent and such notice references the Notes and this Indenture. (f) The Second Lien Collateral Agent may resign at any time by notice to the Second Lien Trustee and the Issuers, such resignation to be effective upon the acceptance of a successor agent to its appointment as Second Lien Collateral Agent. If the Second Lien Collateral Agent resigns under this Indenture, the Issuers shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Second Lien Collateral Agent (as stated in the notice of resignation), the Second Lien Collateral Agent may appoint, after consulting with the Second Lien Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Issuers pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the resigning Second Lien Collateral Agent’s resignation shall nevertheless thereupon become effective (except in the case of the Second Lien Collateral Agent holding collateral security on behalf of the holders of the Notes, the retiring the Second Lien Collateral Agent shall continue to hold such collateral security as nominee until such time as a successor collateral agent is appointed), and the holders of the Notes shall assume and perform all of the duties of the Second Lien Collateral Agent hereunder until such time, if any, as the holders of the Notes appoint a successor collateral agent as provided for above. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Second Lien Collateral Agent, and the term “Second Lien Collateral Agent” shall mean such successor collateral agent, and the retiring Second Lien Collateral Agent’s appointment, powers and duties as the Second Lien Collateral Agent shall be terminated. After the retiring Second Lien Collateral Agent’s resignation hereunder, the provisions of this Section 13.08 (and Section 7.07) shall continue to inure to its benefit and the retiring Second Lien Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Second Lien Collateral Agent under this Indenture.

Second Lien Collateral Agent. (a) The Second Lien Collateral Agent is authorized and empowered to appoint one or more co-Second Lien Collateral Agents as it deems necessary or appropriate. (b) Subject to Section 7.01, neither the Trustee and each of the holders of the Notes, by acceptance of the Notes, hereby designates and appoints nor the Second Lien Collateral Agent as its agent under the Note Documents and the Second Lien Trustee and each of the holders of the Notes, by acceptance of the Notes, hereby irrevocably authorizes the Second Lien Collateral Agent to take such action on its behalf under the provisions of the Note Documents and to exercise such powers and perform such duties as are expressly delegated to the Second Lien Collateral Agent by the terms of the Note Documents, and consents and agrees to the terms of the Intercreditor Agreements and each Second Lien Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Second Lien Collateral Agent agrees to act as such on the express conditions contained in this Section 13.08. The provisions of this Section 13.08 are solely for the benefit of the Second Lien Collateral Agent and none of the Second Lien Trustee, any of the holders of the Notes nor any of the Issuers or Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.03. Each holder of the Notes agrees that any action taken by the Second Lien Collateral Agent in accordance with the provision of the Note Documents, and the exercise by the Second Lien Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all holders of the Notes. Notwithstanding any provision to the contrary contained elsewhere in the Note Documents, the duties of the Second Lien Collateral Agent shall be ministerial and administrative in nature, and the Second Lien Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Note Documents to which the Second Lien Collateral Agent is a party, nor shall the Second Lien Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Second Lien Trustee, any holder of the Notes or any Issuer or Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into the Note Documents exist against the Second Lien Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Second Lien 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) The Second Lien Collateral Agent may perform any of its duties under the Note Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the their respective officers, directors, employees, agentsattorneys or agents will be responsible or liable for the existence, advisors and attorneysgenuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing Second-inPriority Lien Obligations, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens securing Second-fact of such Person and its Affiliates, Priority Lien Obligations or the Security Documents or any delay in doing so. (a “Related Person”c) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in good faith and in accordance with the advice or opinion of such counsel. The Second Lien Collateral Agent shall not will be responsible for subject to such directions as may be given it by the negligence Trustee from time to time (as required or misconduct permitted by this Indenture); provided that in the event of any receiverconflict between directions received pursuant to the Security Documents and directions received hereunder, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made with due care. (c) None of the Second Lien Collateral Agent will be subject to directions received pursuant to the Security Documents and the Intercreditor Agreements. Except as directed by the Trustee as required or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken permitted by any of them under or in connection with any Note Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable judgment) or under or in connection with any Second Lien Collateral Document or Intercreditor Agreement 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, non-appealable judgment), or (ii) be responsible in any manner to any of the Second Lien Trustee or any holder of the Notes for any recital, statement, representation, warranty, covenant or agreement made by any Issuer or Guarantor or Affiliate of any Issuer or Guarantor, or any Officer or Related Person thereof, contained in this Indenture, or Indenture and any other Note representatives or pursuant to the Security Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Second Lien Collateral Agent under will not be obligated: (1) to act upon directions purported to be delivered to it by any other Person; (2) to foreclose upon or in connection with, otherwise enforce any Lien securing Second-Priority Lien Obligations; or (3) to take any other action whatsoever with regard to any or all of the Note DocumentsLiens securing Second-Priority Lien Obligations, or the validity, effectiveness, genuineness, enforceability or sufficiency of any of the Note Documents, or for any failure of any Issuer or Guarantor or any other party to any of the Note Documents to perform its obligations hereunder or thereunder. None of the Second Lien Collateral Agent or any of its respective Related Persons shall be under any obligation to the Second Lien Trustee or any holder of the Notes to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, any of the Note Security Documents or to inspect the properties, books, or records of any Issuer or Guarantor or any Affiliates of any Issuer or GuarantorCollateral. (d) The Second Lien Collateral Agent shall will be entitled to rely, and shall be fully protected in relying, in good faith 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 accountable only for amounts that 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, independent accountants and other experts and advisors selected by the Second Lien Collateral Agent. The Second Lien 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 Second Lien Collateral Agent shall be fully justified in failing or refusing to take any action under any Note Document unless it shall first receive such advice or concurrence actually receives as a result of the Second Lien Trustee as it determines. The Second Lien Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under the Note Documents in accordance with a request, direction, instruction or consent enforcement of the Second Liens securing Second-Priority Lien TrusteeObligations or the Security Documents. (e) The In acting as Second Lien Collateral Agent shall not be deemed to have notice of any Default or Event of Default unless a Trust Officer of the co-Second Lien Collateral Agent has actual knowledge thereof or unless written notice of any event which is in fact such a Default or Event of Default is received by Agent, the Second Lien Collateral Agent and such notice references each co-Second Lien Collateral Agent may rely upon and enforce each and all of the Notes rights, powers, immunities, indemnities and this Indenture.benefits of the Trustee under Article VII hereof (f) The Second Lien Collateral Agent may resign at any time by notice to the Second Lien Trustee and the Issuers, such resignation to be effective upon the acceptance of a successor agent to its appointment as Second Lien Collateral Agent. If the Second Lien Collateral Agent resigns under this Indenture, the Issuers shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Second Lien Collateral Agent (as stated in the notice of resignation), the Second Lien Collateral Agent may appoint, after consulting with the Second Lien Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Issuers pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the resigning Second Lien Collateral Agent’s resignation shall nevertheless thereupon become effective (except in the case of the Second Lien Collateral Agent holding collateral security on behalf of the holders of the Notes, the retiring the Second Lien Collateral Agent shall continue to hold such collateral security as nominee until such time as a successor collateral agent is appointed), and the holders of the Notes shall assume and perform all of the duties of the Second Lien Collateral Agent hereunder until such time, if any, as the holders of the Notes appoint a successor collateral agent as provided for above. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Second Lien Collateral Agent, and the term “Second Lien Collateral Agent” shall mean such successor collateral agent, and the retiring Second Lien Collateral Agent’s appointment, powers and duties as agree that the Second Lien Collateral Agent shall be terminated. After entitled to the retiring rights, privileges, protections, immunities, indemnities and benefits provided to the Second Lien Collateral Agent’s resignation hereunderAgent by the Security Documents. Furthermore, each holder of a Note, by accepting such Note, consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Second Lien Collateral Agent to enter into and perform each Intercreditor Agreement and Security Documents in each of its capacities thereunder. (g) If the Issuers (i) Incur First-Priority Lien Obligations at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting First-Priority Lien Obligations entitled to the benefit of an existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Second Lien Collateral Agent an Officers’ Certificate so stating and requesting the Second Lien Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Senior Lien Intercreditor Agreement) in favor of a designated agent or representative for the holders of the First-Priority Lien Obligations so Incurred, the provisions of this Section 13.08 (and Section 7.07) shall continue to inure to its benefit and the retiring Second Lien Collateral Agent shall not by reason (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the holders on the terms set forth therein and perform and observe its obligations thereunder. If the Issuers (i) Incur Other Second-Lien Obligations at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting Other Second-Lien Obligations entitled to the benefit of such resignation be deemed an existing Intercreditor Agreement is concurrently retired, and (ii) delivers to be released from liability as to any actions taken or omitted to be taken by it while it was the Second Lien Collateral Agent under an Officers’ Certificate so stating and requesting the Second Lien Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Pari Passu Intercreditor Agreement ) in favor of a designated agent or representative for the holders of the Other Second-Lien Obligations so Incurred, the Second Lien Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the holders on the terms set forth therein and perform and observe its obligations thereunder. (h) At all times when the Trustee is not itself the Second Lien Collateral Agent, the Issuers will deliver to the Trustee copies of all Security Documents delivered to the Second Lien Collateral Agent and copies of all documents delivered to the Second Lien Collateral Agent pursuant to this IndentureIndenture and the Security Documents.

Second Lien Collateral Agent. (a) The Second Lien Trustee and each of the holders of the Notes, by acceptance of the Notes, hereby designates and appoints the Second Lien Collateral Agent as its agent under the Note Documents and the Second Lien Trustee and each of the holders of the Notes, by acceptance of the Notes, hereby irrevocably authorizes the Second Lien Collateral Agent to take such action on its behalf under the provisions of the Note Documents and to exercise such powers and perform such duties as are expressly delegated to the Second Lien Collateral Agent by the terms of the Note Documents, and consents and agrees to the terms of the Intercreditor Agreements and each Second Lien Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Second Lien Collateral Agent agrees to act as such on the express conditions contained in this Section 13.08. The provisions of this Section 13.08 are solely for the benefit of the Second Lien Collateral Agent and none of the Second Lien Trustee, any of the holders of the Notes nor any of the Issuers or Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.03. Each holder of the Notes agrees that any action taken by the Second Lien Collateral Agent in accordance with the provision of the Note Documents, and the exercise by the Second Lien Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all holders of the Notes. Notwithstanding any provision to the contrary contained elsewhere in the Note Documents, the duties of the Second Lien Collateral Agent shall be ministerial and administrative in nature, and the Second Lien Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Note Documents to which the Second Lien Collateral Agent is a party, nor shall the Second Lien Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Second Lien Trustee, any holder of the Notes or any Issuer or Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into the Note Documents exist against the Second Lien Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Second Lien 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) The Second Lien Collateral Agent may perform any of its duties under the Note Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates, (a “Related Person”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in good faith and in accordance with the advice or opinion of such counsel. The Second Lien Collateral Agent shall not be responsible for the negligence or misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made with due care. (c) None of the Second Lien 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 any Note Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable judgmentmisconduct) or under or in connection with any Second Lien Collateral Document or Intercreditor Agreement 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, non-appealable judgmentmisconduct), or (ii) be responsible in any manner to any of the Second Lien Trustee or any holder of the Notes for any recital, statement, representation, warranty, covenant or agreement made by any Issuer or Guarantor or Affiliate of any Issuer or Guarantor, or any Officer or Related Person thereof, contained in this Indenture, or any other Note Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Second Lien Collateral Agent under or in connection with, any of the Note Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of any of the Note Documents, or for any failure of any Issuer or Guarantor or any other party to any of the Note Documents to perform its obligations hereunder or thereunder. None of the Second Lien Collateral Agent or any of its respective Related Persons shall be under any obligation to the Second Lien Trustee or any holder of the Notes to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, any of the Note Documents or to inspect the properties, books, or records of any Issuer or Guarantor or any Affiliates of any Issuer or Guarantor. (d) The Second Lien Collateral Agent shall be entitled to rely, and shall be fully protected in relying, in good faith 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 proper Person or Persons, and upon advice and statements of legal counsel, independent accountants and other experts and advisors selected by the Second Lien Collateral Agent. The Second Lien 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 Second Lien Collateral Agent shall be fully justified in failing or refusing to take any action under any Note Document unless it shall first receive such advice or concurrence of the Second Lien Trustee as it determines. The Second Lien Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under the Note Documents in accordance with a request, direction, instruction or consent of the Second Lien Trustee. (e) The Second Lien Collateral Agent shall not be deemed to have notice of any Default or Event of Default unless a Trust Officer of the Second Lien Collateral Agent has actual knowledge thereof or unless written notice of any event which is in fact such a Default or Event of Default is received by the Second Lien Collateral Agent and such notice references the Notes and this Indenture. (f) The Second Lien Collateral Agent may resign at any time by notice to the Second Lien Trustee and the Issuers, such resignation to be effective upon the acceptance of a successor agent to its appointment as Second Lien Collateral Agent. If the Second Lien Collateral Agent resigns under this Indenture, the Issuers shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Second Lien Collateral Agent (as stated in the notice of resignation), the Second Lien Collateral Agent may appoint, after consulting with the Second Lien Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Issuers pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the resigning Second Lien Collateral Agent’s resignation shall nevertheless thereupon become effective (except in the case of the Second Lien Collateral Agent holding collateral security on behalf of the holders of the Notes, the retiring the Second Lien Collateral Agent shall continue be entitled to hold such collateral security as nominee until such time as petition a successor collateral agent is appointed), and the holders court of the Notes shall assume and perform all of the duties of the Second Lien Collateral Agent hereunder until such time, if any, as the holders of the Notes competent jurisdiction to appoint a successor collateral agent as provided for abovesuccessor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Second Lien Collateral Agent, and the term “Second Lien Collateral Agent” shall mean such successor collateral agent, and the retiring Second Lien Collateral Agent’s appointment, powers and duties as the Second Lien Collateral Agent shall be terminated. After the retiring Second Lien Collateral Agent’s resignation hereunder, the provisions of this Section 13.08 (and Section 7.07) shall continue to inure to its benefit and the retiring Second Lien Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Second Lien Collateral Agent under this Indenture.

Second Lien Collateral Agent. (a) The Second Lien Trustee and each of the holders of the Notes, Holders by acceptance of the Notes, Notes hereby designates and appoints the Second Lien Collateral Agent as its agent under this Indenture, the Note Security Documents and the Second Lien Intercreditor Agreement and the Trustee and each of the holders of the Notes, Holders by acceptance of the Notes, Notes hereby irrevocably authorizes the Second Lien Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Note Security Documents and the Intercreditor Agreement and to exercise such powers and perform such duties as are expressly delegated to the Second Lien Collateral Agent by the terms of this Indenture, the Note DocumentsSecurity Documents and the Intercreditor Agreement, and consents and agrees to the terms of the Intercreditor Agreements Agreement and each Second Lien Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Second Lien Collateral Agent agrees to act as such on the express conditions contained in this Section 13.0811.09. The provisions of this Section 13.08 11.09 are solely for the benefit of the Second Lien Collateral Agent and none of the Trustee (unless acting in the capacity of the Second Lien TrusteeCollateral Agent), any of the holders of the Notes Holders nor any of the Issuers Issuer or Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0311.04. Each holder of the Notes Holder agrees that any action taken by the Second Lien Collateral Agent in accordance with the provision of this Indenture, the Note Intercreditor Agreement and the Security Documents, and the exercise by the Second Lien Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all holders of the NotesHolders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Note DocumentsSecurity Documents and the Intercreditor Agreement, the duties of the Second Lien Collateral Agent shall be ministerial and administrative in nature, and the Second Lien Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Note Security Documents to which the Second Lien Collateral Agent is a party, nor shall the Second Lien Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Second Lien Trustee, any holder of the Notes Trustee or any Issuer or GuarantorHolder, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Note Security Documents and the Intercreditor Agreement or otherwise exist against the Second Lien Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Second Lien 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) The Second Lien Collateral Agent may perform any of its duties under this Indenture, the Note Security Documents or the Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates, Affiliates (a “Related Person”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in good faith and in accordance with the reliance upon any advice or opinion of such given by legal counsel. The Second Lien Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made with due carein good faith. (c) None of the Second Lien 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 any Note Document this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable judgmentmisconduct) or under or in connection with any Second Lien Collateral Security Document or the Intercreditor Agreement 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, non-appealable judgmentmisconduct), or (ii) be responsible in any manner to any of the Second Lien Trustee or any holder of the Notes Holder for any recital, statement, representation, warranty, covenant or agreement made by any the Issuer or Guarantor or any Affiliate of any Issuer or Guarantorthe Issuer, or any Officer or Related Person thereof, contained in this Indenture, or any other Note Security Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Second Lien Collateral Agent under or in connection with, any of this Indenture, the Note DocumentsSecurity Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of any of this Indenture, the Note DocumentsSecurity Documents or the Intercreditor Agreement, or for any failure of any Issuer or Guarantor or any other party to any of this Indenture, the Note Security Documents or the Intercreditor Agreement to perform its obligations hereunder or thereunder. None of the Second Lien Collateral Agent or any of its respective Related Persons shall be under any obligation to the Second Lien Trustee or any holder of the Notes Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, any of this Indenture, the Note Security Documents or the Intercreditor Agreement or to inspect the properties, books, or records of any the Issuer or Guarantor or any Affiliates Affiliate of any the Issuer or a Guarantor. (d) The Second Lien Collateral Agent shall be entitled to rely, and shall be fully protected in relying, in good faith 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 proper Person or Persons, and upon advice and statements of legal counselcounsel (including, without limitation, counsel to the Issuer or any Guarantor), independent accountants and other experts and advisors selected by the Second Lien Collateral Agent. The Second Lien 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 Second Lien Collateral Agent shall be fully justified in failing or refusing to take any action under any Note Document this Indenture, the Security Documents or the Intercreditor Agreement unless it shall first receive such advice direction from the Trustee or concurrence the Holders of a majority in aggregate principal amount of the Second Lien Trustee Notes as it determinesdetermines 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 Second Lien Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Note Security Documents or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Second Lien Trustee. (e) The Second Lien Collateral Agent shall not be deemed to have notice Trustee or the Holders of any Default or Event of Default unless a Trust Officer majority in aggregate principal amount of the Second Lien Collateral Agent has actual knowledge thereof or unless written notice of any event which is in fact such a Default or Event of Default is received by the Second Lien Collateral Agent then outstanding Notes and such notice references the Notes request and this Indenture. (f) The Second Lien Collateral Agent may resign at any time by notice action taken or failure to the Second Lien Trustee and the Issuers, such resignation to act pursuant thereto shall be effective binding upon the acceptance of a successor agent to its appointment as Second Lien Collateral Agent. If the Second Lien Collateral Agent resigns under this Indenture, the Issuers shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Second Lien Collateral Agent (as stated in the notice of resignation), the Second Lien Collateral Agent may appoint, after consulting with the Second Lien Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Issuers pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the resigning Second Lien Collateral Agent’s resignation shall nevertheless thereupon become effective (except in the case of the Second Lien Collateral Agent holding collateral security on behalf of the holders of the Notes, the retiring the Second Lien Collateral Agent shall continue to hold such collateral security as nominee until such time as a successor collateral agent is appointed), and the holders of the Notes shall assume and perform all of the duties of the Second Lien Collateral Agent hereunder until such time, if any, as the holders of the Notes appoint a successor collateral agent as provided for above. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Second Lien Collateral Agent, and the term “Second Lien Collateral Agent” shall mean such successor collateral agent, and the retiring Second Lien Collateral Agent’s appointment, powers and duties as the Second Lien Collateral Agent shall be terminated. After the retiring Second Lien Collateral Agent’s resignation hereunder, the provisions of this Section 13.08 (and Section 7.07) shall continue to inure to its benefit and the retiring Second Lien Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Second Lien Collateral Agent under this IndentureHolders.

Second Lien Collateral Agent. (a) The parties hereto hereby agree that Wilmington Trust Company is hereby appointed as and designated by the Second Lien Trustee and each of the holders of the Notes, by acceptance of the Notes, hereby designates and appoints Term Lenders to be the Second Lien Collateral Agent as its agent under the Note Loan Documents and Second Priority Representative under the Intercreditor Agreement and that as such (a) it shall be entitled to the benefits of Article IX and Article X of the Credit Agreement (with such Articles deemed amended for purposes of this Incremental Assumption Agreement to refer to the Second Lien Trustee Collateral Agent, the Second Lien Security Documents, the Second Priority Obligations and each the Required Second Lien Term Lenders in lieu of the holders of Administrative Agent, the NotesSecurity Documents, by acceptance of the NotesObligations and the Required Lenders referred to therein, hereby irrevocably authorizes respectively, and with such other changes as shall be appropriate to provide the Second Lien Collateral Agent with the benefits of said Articles IX and X), (b) it shall be deemed an “Agent” as such term is used in the Credit Agreement, and each reference in the Credit Agreement to take such action on its behalf under the provisions of the Note Documents and an “Agent” shall be deemed to exercise such powers and perform such duties as are expressly delegated to include the Second Lien Collateral Agent by the terms of the Note Documents, and consents and agrees to the terms of the Intercreditor Agreements and each Second Lien Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Second Lien Collateral Agent agrees to act as such on the express conditions contained in this Section 13.08. The provisions of this Section 13.08 are solely for the benefit of (except that the Second Lien Collateral Agent and none of shall not be entitled to any indemnification or expense reimbursement by or from any Lenders other than the Second Lien TrusteeTerm Lenders), any of (c) the holders of the Notes nor any of the Issuers or Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.03. Each holder of the Notes Borrower shall, and hereby agrees that any action taken to, pay (i) all reasonable out-of-pocket expenses (including Other Taxes) incurred by the Second Lien Collateral Agent in accordance connection with the provision preparation of this Incremental Assumption Agreement and the other Loan Documents or the administration of this Incremental Assumption Agreement (including expenses incurred in connection with initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Note Documents, Borrower and the exercise reasonable fees, disbursements and charges for no more than one counsel in each jurisdiction where Collateral is located) or in connection with the administration of the Credit Agreement and the other Loan Documents and any amendments, modifications or waivers of the provisions thereof, and, if necessary, the reasonable fees, charges and disbursements of counsel and (ii) all out-of-pocket expenses (including Other Taxes) incurred by the Second Lien Collateral Agent in connection with the enforcement or protection of any its rights or remedies set forth herein in connection with this Incremental Assumption Agreement, the Credit Agreement and therein shall be authorized and binding upon all holders of the Notes. Notwithstanding any provision to the contrary contained elsewhere in the Note other Loan Documents, including the duties fees, charges and disbursements of counsel for the Second Lien Collateral Agent (including any special and local counsel) and (d) it shall be ministerial and administrative in nature, and the Second Lien Collateral Agent shall not have at any duties or responsibilities, except those expressly set forth herein and in the other Note Documents to which the Second Lien Collateral Agent is a party, nor shall the Second Lien Collateral Agent have or be deemed to have any trust or other fiduciary relationship time with the Second Lien Trustee, any holder of the Notes or any Issuer or Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into the Note Documents exist against the Second Lien Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference respect to the Second Lien Collateral Security Documents take the actions required to be taken at such time by the Administrative 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) The Second Lien Collateral Agent may perform any of its duties under the Note Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact other Security Documents under Section 10.18 of such Person and its Affiliates, (a “Related Person”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in good faith and in accordance with the advice or opinion of such counselCredit Agreement. The Second Lien Collateral Agent hereby agrees that it shall not be responsible for the negligence enter into or misconduct of consent to any receiverwaiver, agentamendment, employee, attorney-in-fact or Related Person that it selects as long as such selection was made with due care. (c) None modification of the Second Lien 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 any Note Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable judgment) or under or in connection with any Second Lien Collateral Document or Intercreditor Agreement or the transactions contemplated thereby Second Lien Security Documents (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction defined in a final, non-appealable judgment), or (iithe Intercreditor Agreement) be responsible in any manner to any without the prior written consent of the Required Second Lien Trustee or any holder of the Notes for any recital, statement, representation, warranty, covenant or agreement made by any Issuer or Guarantor or Affiliate of any Issuer or Guarantor, or any Officer or Related Person thereof, contained in this Indenture, or any other Note Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Second Lien Collateral Agent under or in connection with, any of the Note Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of any of the Note Documents, or for any failure of any Issuer or Guarantor or any other party to any of the Note Documents to perform its obligations hereunder or thereunder. None of the Second Lien Collateral Agent or any of its respective Related Persons shall be under any obligation to the Second Lien Trustee or any holder of the Notes to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, any of the Note Documents or to inspect the properties, books, or records of any Issuer or Guarantor or any Affiliates of any Issuer or Guarantor. (d) The Second Lien Collateral Agent shall be entitled to rely, and shall be fully protected in relying, in good faith 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 proper Person or Persons, and upon advice and statements of legal counsel, independent accountants and other experts and advisors selected by the Second Lien Collateral Agent. The Second Lien 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 documentTerm Lenders. The Second Lien Collateral Agent shall be fully justified in failing requesting direction from the Administrative Agent or refusing the Required Second Lien Term Lenders in the event the Credit Agreement or any other Loan Document is silent or vague with respect to take any action under any Note Document unless it shall first receive such advice or concurrence of the Second Lien Trustee as it determinesCollateral Agent’s duties, rights or obligations. In the event there is any disagreement among the Second Priority Secured Parties (other than the Agents) or the instruction given thereby or this Agreement does not unambiguously mandate a course of action by any Agent, then such Agent may refrain from acting until directed by a court of competent jurisdiction. The Second Lien Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under the Note Credit Agreement and the other Loan Documents in accordance with a requestrequest of the Administrative Agent, direction, instruction and such request and any action taken or consent failure to act pursuant thereto shall be binding upon all the Second Lien Term Lenders and all future holders of the Second Lien Trustee. (e) Term Loans. The Second Lien Collateral Agent shall not be deemed required to have notice act under the Credit Agreement or any other Loan Document or to advance funds or otherwise incur any financial liability in the performance of its duties or the exercise of its rights hereunder or thereunder and under any Default other agreements or Event of Default documents to which it is a party, and shall in all cases be fully justified in failing or refusing to act hereunder or thereunder unless a Trust Officer of it shall receive further assurances to its satisfaction from the Loan Parties and the Second Priority Secured Parties (other than the Second Lien Collateral Agent has actual knowledge thereof Agent) of their indemnification obligations hereunder against any and all liability and expense that may be incurred by it by reason of taking or unless written notice of continuing to take or refraining from taking any event which is in fact such a Default or Event of Default is received by action. Without limiting the Second Lien Collateral Agent and such notice references the Notes and this Indenture. (f) The Second Lien Collateral Agent may resign at any time by notice to the Second Lien Trustee and the Issuers, such resignation to be effective upon the acceptance of a successor agent to its appointment as Second Lien Collateral Agent. If the Second Lien Collateral Agent resigns under this Indenture, the Issuers shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date generality of the resignation of the Second Lien Collateral Agent (as stated in the notice of resignation)foregoing, the Second Lien Collateral Agent may appoint, after consulting with the Second Lien Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Issuers pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the resigning Second Lien Collateral Agent’s resignation shall nevertheless thereupon become effective (except in the case of powers expressly contemplated hereby that the Second Lien Collateral Agent holding collateral security on behalf is required to exercise as directed in writing by the Administrative Agent or Required Second Lien Term Lenders (or such other number or percentage of the holders Second Lien Term Lenders as shall be necessary under the circumstances). For the avoidance of the Notesdoubt, the retiring the Second Lien Collateral Agent shall continue to hold not be responsible for the perfection of any Lien or for the filing, form, content or renewal of any UCC financing statements, fixture filings, Mortgages, deeds of trust and such collateral security as nominee until such time as a successor collateral agent is appointed), and the holders other documents or instruments. Section 10.08 of the Notes Credit Agreement is hereby deemed amended to provide that no amendment to the Credit Agreement or any other Loan Document shall assume and perform all of affect the rights or duties of the Second Lien Collateral Agent hereunder until such timewithout its written consent. For purposes of any Mortgages, if any, as the holders Wilmington Trust FSB shall be deemed to be an agent of the Notes appoint a successor collateral agent as provided for above. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Second Lien Collateral Agent, . (b) The parties hereto hereby acknowledge and the term “Second Lien Collateral Agent” shall mean such successor collateral agent, and the retiring Second Lien Collateral Agent’s appointment, powers and duties as agree to be bound by Section 7.18 of the Second Lien Guarantee and Collateral Agent shall be terminated. After the retiring Second Lien Collateral Agent’s resignation hereunder, the provisions of this Section 13.08 (and Section 7.07) shall continue to inure to its benefit and the retiring Second Lien Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Second Lien Collateral Agent under this IndentureAgreement.