Common use of STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM Clause in Contracts

STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM. The powers conferred on the Revolving Collateral Agent hereunder are solely to protect its interest in the Collateral and Mortgaged Property and shall not impose any duty upon it to exercise any such powers. Except for the exercise of reasonable care in the custody of any Collateral or Mortgaged Property in its possession and the accounting for moneys actually received by it hereunder, the Revolving Collateral Agent shall have no duty as to any Collateral or Mortgaged Property or as to the taking of any necessary steps to preserve rights or remedies against prior parties or any other rights or remedies pertaining to any Collateral or Mortgaged Property. The Revolving Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of Collateral in its possession if the Revolving Collateral Agent has performed its duties and obligations as set forth in this Agreement. Neither the Revolving Collateral Agent nor any of its directors, officers, employees or agents shall be liable for failure to demand, collect or realize upon all or any part of the Collateral or Mortgaged Property or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral or Mortgaged Property upon the request of any Grantor or otherwise. If any Grantor fails to perform any agreement contained herein, the Revolving Collateral Agent may itself perform, or cause performance of, such agreement, subject to the terms of the Intercreditor Agreement, and the costs, fees, expenses and disbursements of the Revolving Collateral Agent incurred in connection therewith shall be payable by each Grantor under Section 10.2 of the Revolving Credit Agreement.

STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM. The powers conferred on the Revolving Collateral Agent hereunder are solely to protect its interest in the Collateral and Mortgaged Property and shall not impose any duty upon it to exercise any such powers. Except for the exercise of reasonable care in the custody of any Collateral or Mortgaged Property in its possession and the accounting for moneys actually received by it hereunder, the Revolving Collateral Agent shall have no duty as to any Collateral or Mortgaged Property or as to the taking of any necessary steps to preserve rights or remedies against prior parties or any other rights or remedies pertaining to any Collateral or Mortgaged PropertyCollateral. The Revolving Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of Collateral in its possession if such Collateral is accorded treatment substantially equal to that which the Revolving Collateral Agent has performed accords its duties and obligations as set forth in this Agreementown property. Neither the Revolving Collateral Agent nor any of its directors, officers, employees or agents shall be liable for failure to demand, collect or realize upon all or any part of the Collateral or Mortgaged Property or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral or Mortgaged Property upon the request of any Grantor or otherwise. If any Grantor fails to perform any agreement contained herein, the Revolving Collateral Agent may itself perform, or cause performance of, such agreement, subject to and the terms expenses of the Intercreditor Agreement, and the costs, fees, expenses and disbursements of the Revolving Collateral Agent incurred in connection therewith shall be payable by each Grantor under Section 10.2 7.07 of the Revolving Credit Indenture. Notwithstanding anything to the contrary herein, the following provisions shall govern the Collateral Agent’s rights, powers, obligations and duties under this Agreement: (a) Notwithstanding anything herein to the contrary, in no event shall the Collateral Agent have any obligation to inquire or investigate as to the correctness, veracity or content of any instruction received from the Trustee or pursuant to any other Notes Documents. In no event shall the Collateral Agent have any liability in respect of any such instruction received by it and relied on with respect to any action or omission taken pursuant thereto. (b) Neither the Collateral Agent nor any of its experts, officers, directors, employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any action lawfully taken or omitted to be taken by it under or in connection with this Agreement or any of the other Notes Documents (except for its gross negligence or willful misconduct), or (ii) responsible in any manner for any recitals, statements, representations or warranties (other than its own recitals, statements, representations or warranties) made in this Agreement or any of the other Notes Documents or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement or any of the other Notes Documents or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any of the other Notes Documents or for any failure of the Grantors or any other Person to perform their obligations hereunder and thereunder. The Collateral Agent shall not be under any obligation to any Person to ascertain or to inquire as to (i) the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any of the other Notes Documents or to inspect the properties, books or records of the Grantors, (ii) whether or not any representation or warranty made by any Person in connection with this Agreement or any of the other Notes Documents is true, (iii) the performance by any Person of its obligations under this Agreement or any of the other Notes Documents or (iv) the breach of or default by any Person of its obligations under this Agreement or any of the other Notes Documents. (c) The Collateral Agent shall not be bound to (i) account to any Person for any sum or the profit element of any sum received for its own account; (ii) disclose to any other Person any information relating to the Person if such disclosure would, or might, constitute a breach of any law or regulation or be otherwise actionable at the suit of any Person; (iii) be under any fiduciary duties or obligations other than those for which express provision is made in this Agreement or in any of the other Notes Documents to which it is a party; or (iv) be required to take any action that it believes, based on advice of counsel, is in conflict with any applicable law, this Agreement or any of the other Notes Documents, or any order of any court or administrative agency. (d) The Collateral Agent shall be authorized to, but shall not be responsible for, filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or monitoring or maintaining the perfection of any security interest in the Collateral. It is expressly agreed, to the maximum extent permitted by applicable law, that the Collateral Agent shall have no responsibility for (i) taking any necessary steps to preserve rights against any Person with respect to any Collateral or (ii) taking any action to protect against any diminution in value of the Collateral, but, in each case (A) subject to the requirement that the Collateral Agent may not act or omit to take any action if such act or omission would constitute gross negligence or willful misconduct and (B) the Collateral Agent may do so and all expenses reasonably incurred in connection therewith shall be part of the Secured Obligations. (e) The Collateral Agent shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent in good faith, except to the extent of the Collateral Agent’s gross negligence or willful misconduct. (f) The Collateral Agent shall not be responsible for, nor incur any liability with respect to, (i) the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the security interest in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part under this Agreement or any of the other Notes Documents, except to the extent such action or omission constitutes gross negligence or willful misconduct on the part of the Collateral Agent, (ii) the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iii) the validity of the title of the Grantors to the Collateral, (iv) insuring the Collateral or (v) the payment of taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral. (g) Notwithstanding anything in this Agreement or any of the other Notes Documents to the contrary, (i) in no event shall the Collateral Agent or any officer, director, employee, representative or agent of the Collateral Agent be liable under or in connection with this Agreement or any of the other Collateral Documents for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including, but not limited to, lost profits or loss of opportunity, whether or not foreseeable, even if the Collateral Agent has been advised of the possibility thereof and regardless of the form of action in which such damages are sought; and (ii) the Collateral Agent shall be afforded all of the rights, powers, immunities and indemnities that are set forth in this Agreement in all of the other Notes Documents to which it is a signatory as if such rights, powers, immunities and indemnities were specifically set out in each such Notes Document. In no event shall the Collateral Agent be obligated to invest any amounts received by it hereunder. (h) The Collateral Agent shall be entitled conclusively to rely, and shall be fully protected in relying, upon any note, writing, resolution, request, direction, certificate, notice, consent, affidavit, letter, cablegram, telegram, telecopy, email, telex or teletype message, statement, order or other document or conversation believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and/or upon advice and/or statements of legal counsel, independent accountants and other experts selected by the Collateral Agent and need not investigate any fact or matter stated in any such document. Any such statement of legal counsel shall be full and complete authorization and protection in respect of any action taken or suffered by it hereunder in accordance therewith. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Agreement or any of the other Notes Documents (i) if such action would, in the reasonable opinion of the Collateral Agent (which may be based on the opinion of legal counsel), be contrary to applicable law or any of the Notes Documents, (ii) if such action is not provided for in this Agreement or any of the other Notes Documents, (iii) if, in connection with the taking of any such action hereunder or under any of the other Notes Documents that would constitute an exercise of remedies hereunder or under any of the other Notes Documents, it shall not first be indemnified to its satisfaction by the Holders against any and all risk of nonpayment, liability and expense that may be incurred by it, its agents or its counsel by reason of taking or continuing to take any such action, or (iv) if, notwithstanding anything to the contrary contained in this Agreement, in connection with the taking of any such action that would constitute a payment due under any agreement or document, it shall not first have received from the Holders or the Grantors funds equal to such amount payable. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any of the other Notes Documents in accordance with a request of the requisite percentage of Holders under the Indenture, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the other Holders and the Trustee. (i) The Collateral Agent shall not be deemed to have actual, constructive, direct or indirect knowledge or notice of the occurrence of any Default unless and until the Collateral Agent has received a written notice or a certificate from the Grantors or the Trustee stating that a Default has occurred. The Collateral Agent shall have no obligation whatsoever either prior to or after receiving such notice or certificate to inquire whether a Default has in fact occurred and shall be entitled to rely conclusively, and shall be fully protected in so relying, on any notice or certificate so furnished to it. No provision of this Agreement or any of the other Notes Documents shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under this Agreement, any of the other Notes Documents or the exercise of any of its rights or powers, and, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability, including an advance of moneys necessary to perform work or to take the action requested, is not reasonably assured to it, the Collateral Agent may decline to act unless it receives indemnity satisfactory to it in its sole discretion, including an advance of moneys necessary to take the action requested. The Collateral Agent shall be under no obligation or duty to take any action under this Agreement or any of the other Notes Documents or otherwise if taking such action (i) would subject the Collateral Agent to a tax in any jurisdiction where it is not then subject to a tax or (ii) would require the Collateral Agent to qualify to do business in any jurisdiction where it is not then so qualified. The rights, protections, immunities and indemnities in favor of the Collateral Agent in the Indenture, including, but not limited to, those contained in Article 7 and Article 10 thereof, shall be incorporated herein by reference and shall form a part of this Agreement.

STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM. The powers conferred on the Revolving Collateral Agent hereunder are solely to protect its interest interest, for the benefit and on behalf of the Secured Parties, in the Collateral and Mortgaged Property and shall not impose any duty upon it to exercise any such powers. Except for the exercise of reasonable care in the custody of any Collateral or Mortgaged Property in its possession or control and the accounting for moneys actually received by it hereunder, the Revolving Collateral Agent shall have no duty as to any Collateral or Mortgaged Property or as to the taking of any necessary steps to preserve rights or remedies against prior parties or any other rights or remedies pertaining to any Collateral or Mortgaged PropertyCollateral. The Revolving Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of Collateral in its possession if possession, so long as the Revolving Collateral Agent has performed its duties and obligations as set forth acts in accordance with the standard of care required by this Agreement. Neither the Revolving Collateral Agent nor any of its directors, officers, employees or agents shall be liable for any action taken or failure to demand, collect take or realize upon all or any part of the Collateral or Mortgaged Property or for any delay in doing so taking action under this Agreement except to the extent of its gross negligence or willful misconduct. The Collateral Agent shall not be under any obligation to sell or otherwise dispose of any Collateral or Mortgaged Property upon the request of any Grantor or otherwise. If any Grantor fails to perform any agreement contained herein, the Revolving Collateral Agent Agent, or its designee, may itself perform, or cause performance of, such agreement, subject to and the terms expenses of the Intercreditor Agreement, and the costs, fees, expenses and disbursements of the Revolving Collateral Agent incurred in connection therewith shall be payable by each Grantor under Section 10.2 7.07 of the Revolving Credit AgreementIndenture. The Collateral Agent shall have the benefit of all exculpatory provisions, presumptions, indemnities, protections, benefits, immunities or reliance rights contained in the Indenture (in addition to those set forth herein) in the acceptance, execution, delivery and performance of this Agreement as though fully set forth herein.

STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM. The powers conferred on the Revolving Collateral Agent hereunder are solely to protect its interest in the Collateral and Mortgaged Property and shall not impose any duty upon it to exercise any such powers. Except for the exercise of reasonable care in the custody of any Collateral or Mortgaged Property in its possession and the accounting for moneys actually received by it hereunderhereunder and other requirements of law or the UCC, the Revolving Collateral Agent shall have no duty as to any Collateral or Mortgaged Property or as to the taking of any necessary steps to preserve rights or remedies against prior parties or any other rights or remedies pertaining to any Collateral or Mortgaged PropertyCollateral. The Revolving To the extent permitted by law, the Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of Collateral in its possession if such Collateral is accorded treatment substantially equal to that which the Revolving Collateral Agent has performed accords its duties own property. Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any of the Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto, and obligations as set forth the Collateral Agent shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in this Agreementany public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. Neither the Revolving Collateral Agent nor any of its directors, officers, employees or agents shall be liable for failure to demand, collect or realize upon all or any part of the Collateral or Mortgaged Property or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral or Mortgaged Property upon the request of any the Grantor or otherwise. If any the Grantor fails to perform any agreement contained herein, the Revolving Collateral Agent may itself perform, or cause performance of, such agreement, subject to and the terms expenses of the Intercreditor Agreement, and the costs, fees, expenses and disbursements of the Revolving Collateral Agent incurred in connection therewith shall be payable by each the Grantor under Section 10.2 of the Revolving Credit Agreement.

STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM. The powers conferred on the Revolving Term Collateral Agent hereunder are solely to protect its interest in the Collateral and Mortgaged Property and shall not impose any duty upon it to exercise any such powers. Except for the exercise of reasonable care in the custody of any Collateral or Mortgaged Property in its possession and the accounting for moneys actually received by it hereunder, the Revolving Term Collateral Agent shall have no duty as to any Collateral or Mortgaged Property or as to the taking of any necessary steps to preserve rights or remedies against prior parties or any other rights or remedies pertaining to any Collateral or Mortgaged Property. The Revolving Term Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of Collateral in its possession if the Revolving Term Collateral Agent has performed its duties and obligations as set forth in this Agreement. Neither the Revolving Term Collateral Agent nor any of its directors, officers, employees or agents shall be liable for failure to demand, collect or realize upon all or any part of the Collateral or Mortgaged Property or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral or Mortgaged Property upon the request of any Grantor or otherwise. If any Grantor fails to perform any agreement contained herein, the Revolving Term Collateral Agent may itself perform, or cause performance of, such agreement, subject to the terms of the Intercreditor Agreement, and the costs, fees, expenses and disbursements of the Revolving Term Collateral Agent incurred in connection therewith shall be payable by each Grantor under Section 10.2 of the Revolving Credit Term Loan Agreement.

STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM. The powers conferred on the Revolving Collateral Agent hereunder are solely to protect its interest in the Collateral and Mortgaged Property and shall not impose any duty upon it to exercise any such powers. Except for the exercise of reasonable care in the custody of any Collateral or Mortgaged Property in its possession and the accounting for moneys actually received by it hereunder, the Revolving Collateral Agent shall have no duty as to any Collateral or Mortgaged Property or as to the taking of any necessary steps to preserve rights or remedies against prior parties or any other rights or remedies pertaining to any Collateral or Mortgaged PropertyCollateral. The Revolving Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of Collateral in its possession if such Collateral is accorded treatment substantially equal to that which the Revolving Collateral Agent has performed accords its duties and obligations as set forth in this Agreementown property. Neither the Revolving Collateral Agent nor any of its directors, officers, employees or agents shall be liable for failure to demand, collect or realize upon all or any part of the Collateral or Mortgaged Property or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral or Mortgaged Property upon the request of any Grantor or otherwise. If any Grantor fails to perform any agreement contained herein, the Revolving Collateral Agent may itself perform, or cause performance of, such agreement, subject to and the terms expenses of the Intercreditor Agreement, and the costs, fees, expenses and disbursements of the Revolving Collateral Agent incurred in connection therewith shall be payable by each Grantor under Section 10.2 7.06 of the Revolving Credit Indenture. In the performance of its rights and obligations under this Agreement, the Collateral Agent shall be entitled to all of its rights, protections, privileges, indemnities and immunities set forth in the Indenture, including the right to seek direction from the Trustee for any discretionary acts to be taken by the Collateral Agent hereunder. If there is any conflict between the provisions of the Indenture and this Agreement, with regard to the Collateral, the provisions of the Indenture shall govern.