Common use of Agent Clause in Contracts

Agent. (a) Each Lender hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), as Agent hereunder and under the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under the Facility Documents and (iii) exercise such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Facility Document, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or therein.

Agent. (a) Each Lender In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank is hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), to act as Agent hereunder on behalf of the Lenders. Each of the Lenders and under each subsequent holder of any Note or issuer of any Letter of Credit by its acceptance thereof, irrevocably authorizes the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions action on its behalf and to exercise all rights, such powers hereunder and remedies under the Security Documents and perform the duties other Loan Documents as are expressly specifically delegated to or required of the Agent under by the Facility Documents terms hereof and (iii) exercise the terms thereof together with such actions and powers as are reasonably incidental thereto. Notwithstanding Neither the Agent nor any provision of its directors, officers, employees or agents shall be liable as such for any action taken or omitted to be taken by it or them hereunder or under any of the Security Documents and other Loan Documents or in connection herewith or therewith (a) at the request or with the approval of the Required Lenders (or, if otherwise specifically required hereunder or thereunder, the consent of all the Lenders) or (b) in the absence of its or their own gross negligence or willful misconduct. For its services as Agent, the Borrowers have agreed to pay The Chase Manhattan Bank an administration fee which has been negotiated between the parties. The Agent is hereby expressly authorized on behalf of the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of each of the Lenders any payment of principal of or interest on the Notes outstanding hereunder and all other amounts accrued hereunder which are paid to the contrary contained elsewhere Agent, and promptly to distribute to each Lender its proper share of all payments so received, (b) to distribute to each Lender copies of all notices, agreements and other material as provided for in this Agreement or in the Security Documents and other Loan Documents as received by such Agent and (c) to take all actions with respect to this Agreement and the Security Documents and other Loan Documents as are specifically delegated to the Agent. In the event that (a) any Borrower fails to pay when due the principal of or interest on any Note, any amount payable under any Letter of Credit, or any fee payable hereunder or (b) the Agent receives written notice of the occurrence of a Default or an Event of Default (the Agent being deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Agent by any Borrower or a Lender), the Agent within a reasonable time shall give written notice thereof to the Lenders, and shall take such action with respect to such Event of Default or other Facility Documentcondition or event as it shall be directed to take by the Required Lenders; provided, however, that, unless and until the Agent shall have received such directions, the Agent may take such action or refrain from taking such action hereunder or under the Security Documents or other Loan Documents with respect to a Default or Event of Default as it shall deem advisable in the best interests of the Lenders. The Agent shall not have be responsible in any duty manner to any of the Lenders for the effectiveness, enforceability, perfection, value, genuineness, validity or responsibility except those expressly set forth herein; nor shall Agent have due execution of this Agreement, the Notes or any of the other Loan Documents or Collateral or any other agreements or certificates, requests, financial statements, notices or opinions of counsel or for any recitals, statements, warranties or representations contained herein or in any such instrument or be deemed under any obligation to have ascertain or inquire as to the performance or observance of any fiduciary relationship with any Lender or participantof the terms, and no implied provisions, covenants, functionsconditions, responsibilities, duties, agreements or obligations or liabilities shall be read into of this Agreement or any of the other Facility Document Loan Documents or otherwise exist against Agent. Without any other agreements on the part of the Borrowers and, without limiting the generality of the foregoing sentenceforegoing, the use Agent shall, in the absence of knowledge to the contrary, be entitled to accept any certificate furnished pursuant to this Agreement or any of the term “agent” herein other Loan Documents as conclusive evidence of the facts stated therein and shall be entitled to rely on any note, notice, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document which it believes in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. It is understood and agreed that the Agent may exercise its rights and powers under other agreements and instruments to which it is or may be a party, and engage in other Facility Documents transactions with reference the Borrowers, as though it were not Agent of the Lenders hereunder. The Agent shall promptly give notice to Agent is not intended to connote the Lenders of the receipt or sending of any fiduciary notice, schedule, report, projection, financial statement or other implied (document or express) information pursuant to this Agreement or any of the other Loan Documents and shall promptly forward a copy thereof to each Lender. Neither the Agent nor any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure or delay in performance or breach by any Lender other than the Agent of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Borrowers of any of their respective obligations hereunder or in connection herewith. The Agent may consult with legal counsel selected by it in connection with matters arising under agency doctrine this Agreement or any of the other Loan Documents and any Applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create action taken or reflect only an administrative relationship between independent contracting parties. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated suffered in good faith by it in accordance with the terms hereof on behalf opinion of such Secured Party counsel shall be full justification and agrees protection to be bound by the terms and provisions thereof, including any purchase option contained thereinit. The provisions Agent may exercise any of its powers and rights and perform any duty under this Section 9.13 are solely for Agreement or any of the benefit of other Loan Documents through agents or attorneys. The Agent and the Lenders Borrowers may deem and none treat the payee of any Note as the holder thereof until written notice of transfer shall have been delivered as provided in Section 11.03 by such payee to the Agent and the Borrowers or and such transfer is otherwise in accordance with Section 11.03. With respect to the other Loan Parties shall have any rights as a third party beneficiary of any of Loans made hereunder, the provisions in this Section 9.13. In performing its functions Notes issued to it and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Credit Event applicable to it, the Agent may perform any of in its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees individual capacity and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. not as an Agent shall have the same rights rights, powers and powers duties hereunder and under the Facility Documents any other agreement executed in connection herewith as any other Lender and may exercise or refrain from exercising the same as though it were not the Agent, and the Agent and its Affiliates affiliates may accept deposits from, lend money to, invest in to and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party the Borrowers or other affiliate thereof as if it were not Agent hereunderthe Agent. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any Each of the other Facility Documents is intended to Lenders hereby acknowledges that the Agent and/or one or shall be construed to impose upon Agent any obligations in respect of this Agreement or any more Affiliates of the other Facility Documents except as expressly set forth herein or thereinAgent may at any time and from time to time be a holder of equity interests in a Loan Party.

Agent. (a) Each Lender hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required LendersXxxxxxx), as the Agent hereunder and under the other Facility Documents and authorizes the Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to the Agent under the Facility Documents and (iii) exercise such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Facility Document, the Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall the Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against the Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to the 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 8.13 are solely for the benefit of the Agent and the Lenders and none of the Borrowers Borrower or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.138.13. In performing its functions and duties under this Agreement and the other Facility Documents, The Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower Loan Party or any other Loan Party. The Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 8.13 to the extent provided by the Agent. The Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not the Agent, and the Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not the Agent hereunder. The duties of the Agent shall be mechanical and administrative in nature. The Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents is intended to or shall be construed to impose upon the Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or therein.

Agent. (a) Appointment and Authorization of Agent. Each Lender Guarantor hereby designates and appoints VantagePoint Venture Partners III (Q), L. P. as its representative under this Agreement and the other Operative Documents and each Guarantor hereby irrevocably appoints Deerfield Partnersauthorizes Agent, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), as Agent hereunder and under the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof take such action on its behalf from any Loan Party, (ii) take such under the provisions of this Agreement and each other actions on its behalf Operative Document and to exercise all rights, such powers and remedies and perform the such duties as are expressly delegated to Agent under by the Facility Documents and (iii) exercise terms of this Agreement or any other Operative Document, together with such powers as are reasonably incidental thereto. Notwithstanding Agent agrees to act as representative of the Guarantors on the express conditions contained in this Section 7 and as set forth in the Operative Documents. The provisions of this Section 7 are solely for the benefit of Agent, and the Guarantors, and Obligor shall have no rights as a third party beneficiary of any of the provisions contained herein. Any provision to the contrary contained elsewhere in this Agreement or in any other Facility DocumentOperative Document notwithstanding, Agent shall not have any duty duties or responsibility responsibilities, except those expressly set forth herein; herein or therein, nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participantGuarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Operative Document or otherwise exist against Agent; it being expressly understood and agreed that the use of the word "Agent" is for convenience only, that Agent is merely the representative of the Guarantors, and only has the contractual duties set forth herein and in the Operative Documents. Except as expressly otherwise provided in this Agreement, Agent shall in good faith and in the best interests of the Guarantors 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 that Agent expressly is entitled to take or assert under or pursuant to this Agreement and the other Operative Documents. Without limiting the generality of the foregoing sentenceforegoing, the use or of any other provision of the term “agent” herein and in other Facility Operative Documents with reference that provides rights or powers to Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. InsteadAgent, 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Guarantors agree that Agent shall have the same right to exercise the following powers as long as this Agreement remains in effect: (a) maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Obligations, the Collateral and related matters, (b) execute or file any and all financing or similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect to the Operative Documents, (c) exclusively receive, apply, and distribute any payments received from Obligor or proceeds of Collateral as provided in the Operative Documents, (d) perform, exercise, and enforce any and all other rights and powers under remedies of the Facility Documents as Guarantors with respect to Obligor, the Obligations, the Collateral or otherwise related to any other Lender and may exercise or refrain from exercising the of same as though it were not Agentprovided in the Operative Documents, and (e) incur and pay such Guaranty Expense Amounts as Agent reasonably may deem necessary or appropriate for the performance and fulfillment of its Affiliates may lend money to, invest in functions and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or powers pursuant to the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or thereinOperative Documents.

Agent. IRP GP (a“Agent”) Each Lender is hereby irrevocably appoints Deerfield Partnersappointed as agent and attorney-in-fact for each Seller, L.P. (together and through the Closing, for each Acquired Company, for and on behalf of Sellers and the Acquired Companies, to act as Agent for Sellers and the Acquired Companies under this Agreement and each other Transaction Document, and to give and receive notices and communications, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with any successor Agent appointed by Deerfield Partnersorders of courts and awards of arbitrators with respect to claims for indemnification, L.P. to authorize delivery to Buyer or any successor Buyer Indemnitee of any payment hereunder, and to take all actions necessary or appropriate in the judgment of Agent that was appointed by for the Required Lenders), as accomplishment of the foregoing in accordance with the terms and provisions of this Agreement and each other Transaction Document. Notices or communications to or from Agent hereunder shall constitute notice to or from each Seller or, at or prior to the Closing, the Acquired Companies. Sellers and under the other Facility Documents and authorizes Acquired Companies hereby agree that the appointment of Agent pursuant to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, powers and remedies and perform the duties this Section 11.1 shall be irrevocable except as are expressly delegated to Agent under the Facility Documents and (iii) exercise such powers as are reasonably incidental theretootherwise provided herein or by non-waivable provisions of Applicable Law. Notwithstanding any provision the foregoing, such appointment shall be automatically revoked as to the contrary contained elsewhere in this Agreement Acquired Companies as of the completion of the Closing. Any decision, act, consent or in any other Facility Document, instruction of Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed relating to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Transaction Document shall constitute a decision of all of Sellers and, if prior to or otherwise exist against Agent. Without limiting at the generality of the foregoing sentenceClosing, the use of the term “agent” herein and in other Facility Documents with reference to 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 customAcquired Companies, and is intended shall be final, binding and conclusive upon each Seller and the Acquired Companies (but, with respect to create the Acquired Companies, only to the extent related to any time period ending at or reflect only an administrative relationship between independent contracting parties. Each Secured Party further consents prior to the Closing) and authorizes Agent’s execution and delivery of Buyer may rely upon any additional intercreditor such written decision, consent or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit instruction of Agent as being the decision, consent or instruction of each and every Seller and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13Acquired Companies. In performing its functions and duties under this Agreement Buyer and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed Buyer Indemnitees are hereby relieved from any liability to have assumed any obligation toward or relationship of agency or trust with or Person for any Borrower acts done by them in accordance with such decision, consent or any other Loan Party. Agent may perform any instruction of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Sellers hereby jointly and severally agree to indemnify and hold Agent, its affiliates and their officers, employees, successors, assigns, attorneys and agents harmless from all losses, costs, claims, demands, expenses, damages, penalties and attorney’s fees suffered or incurred by such Agent shall have the same rights and powers under the Facility Documents as any other Lender and a result of anything which it may exercise do or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest doing in and generally engage in any kind of business connection with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents is intended to Transaction Document or shall be construed to impose upon Agent any obligations litigation or cause or action arising from or in respect of conjunction with this Agreement or any Transaction Document or involving the subject matter hereof; provided that the foregoing indemnification shall not extend to the gross negligence or willful misconduct of the other Facility Documents except as expressly set forth herein or thereinAgent.

Agent. Capitalized terms used herein and not otherwise defined herein are used herein as defined in the Credit Agreement. This Term Note is a “Note” to which reference is made in the Credit Agreement and is subject to all terms and provisions thereof. This Term Note is also entitled to the benefits of the Credit Agreement and is secured by the Collateral. The principal of, and interest on, this Term Note shall be payable at the times, in the manner, and in the amounts as provided in the Credit Agreement and shall be subject to prepayment and acceleration as provided therein. Agent’s books and records concerning the Term Loan, the accrual of interest and fees thereon and the repayment of such Term Loan shall be prima facie evidence of the indebtedness to Lender hereunder, absent manifest error. No delay or omission by Lender or Agent in exercising or enforcing any of its powers, rights, privileges, remedies or discretions hereunder shall operate as a waiver thereof on that occasion nor on any other occasion. No waiver of any Event of Default shall operate as a waiver of any other Event of Default, nor as a continuing waiver. Borrower waives presentment, demand, notice and protest, and also waives any delay on the part of the holder hereof. Borrower assents to any extension or other indulgence (aincluding, without limitation, the release or substitution of Collateral) Each permitted by Agent, Agent and/or Lender hereby irrevocably appoints Deerfield Partners, L.P. (together with respect to this Term Note and/or any successor Agent appointed by Deerfield Partners, L.P. Loan Document or any successor Agent that was appointed by the Required Lenders), as Agent hereunder and under the extension or other Facility Documents and authorizes Agent indulgence with respect to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under the Facility Documents and (iii) exercise such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Facility Document, Agent shall not have liability or any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed collateral given to have secure any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement other liability of Borrower or any other Facility Document Person obligated on account of this Term Note. This Term Note shall be binding upon Borrower and upon its successors, assigns, and representatives, and shall inure to the benefit of Lender and its successors, endorsees and assigns. Borrower agrees that any action or otherwise exist against Agent. Without limiting the generality proceeding arising out of or relating to this Term Note or for recognition or enforcement of any judgment, may be brought in any California State court or Federal court of the foregoing sentence, the use United States of the term “agent” herein and America sitting in other Facility Documents with reference to 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 customLos Angeles, and is intended to create or reflect only an administrative relationship between independent contracting parties. Each Secured Party further consents to any appellate court from any thereof, and authorizes Agent’s by execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party this Term Note, Borrower and agrees to be bound by the terms Lender each consent, for itself and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of its property, to the exclusive jurisdiction of those courts. Each of Borrower and, by its acceptance hereof, Lender, irrevocably and unconditionally waives, to the fullest extent that it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Term Note in any California State or Federal court. Each of Borrower and, by its acceptance hereof, Lender, hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. Nothing in this Agreement THIS TERM NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA WITHOUT REFERENCE TO ITS CONFLICT OF LAW PRINCIPALS. Each of Borrower and, by its acceptance hereof, Lender, makes the following waiver knowingly, voluntarily, and intentionally, and understands that Lender or Borrower, as applicable, are each relying thereon. EACH OF BORROWER AND LENDER BY ITS ACCEPTANCE HEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS TERM NOTE. If such waiver is for any reason not enforceable as provided, then the provisions of Sections 11.3 and 11.4 of the other Facility Documents is intended to or Credit Agreement shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth deemed incorporated herein or thereinby reference.

Agent. (a) Each Lender Purchaser hereby irrevocably (i) appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders)Agent, as Agent the collateral agent hereunder and under the other Facility Documents Security Documents, and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) authorizes the Agent (and its officers, directors, employees and agents) to take such other actions action on its such Purchaser’s behalf in accordance with the terms hereof and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under the Facility Documents and (iii) exercise such powers as are reasonably incidental theretothereof. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Facility Document, The Agent shall not have any duty have, by reason hereof or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Security Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any LenderPurchaser. Nothing Neither the Agent nor any of its officers, directors, employees or agents shall have any liability to any Purchaser for any action taken or omitted to be taken in connection hereof or any other Security Document except to the extent caused by its own gross negligence or willful misconduct, and each Purchaser agrees to defend, protect, indemnify and hold harmless the Agent and all of its officers, directors, employees and agents (collectively, the “Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Agent Indemnitee of the duties and obligations of Agent pursuant hereto or any of the Security Documents. The Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Holders, and such instructions shall be binding upon all holders of Notes; provided, however, that the Agent shall not be required to take any action which, in the reasonable opinion of the Agent, exposes the Agent to liability or which is contrary to this Agreement or any other Transaction Document or applicable law. The Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Facility Transaction Documents is intended to and its duties hereunder or shall be construed to impose thereunder, upon Agent any obligations in respect advice of this Agreement or any of the other Facility Documents except as expressly set forth herein or thereincounsel selected by it.

Agent. (a) Each Lender hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), as Agent hereunder and under the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under the Facility Documents and (iii) exercise such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Facility Document, Actions The Agent shall not have any duty or responsibility except those expressly set forth herein; nor at all times act upon and in accordance with written instructions received from a Two-Thirds-in-Interest (as defined in Section 15) time to time. The Agent shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality authorized on behalf of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to 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. Each each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof act on behalf of such Secured Party under this Agreement and, in the absence of written instructions from a Two-Thirds-in-Interest (with respect to which the Agent agrees that it will, subject to the last two sentences of this Section, comply, except as otherwise advised by counsel), to exercise such powers hereunder and agrees thereunder as are specifically delegated to be bound or required of the Agent by the terms hereof and provisions thereof, including any purchase option contained thereintogether with such powers as may be reasonably incidental thereto. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights no duty to ascertain or inquire as a third party beneficiary to the performance or observance of any of the provisions terms of this Agreement by the Borrower. By accepting their Debentures each Secured Party shall be deemed to have agreed to indemnify the Agent (which agreement shall survive any termination of such Secured Party’ percentage), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may at any time be imposed on, incurred by, or asserted against the Agent in this Section 9.13. In performing its functions and duties under any way relating to or arising out of this Agreement and the other Facility DocumentsDebentures, including the reimbursement of the Agent shall act solely as agent for all out-of-pocket expenses (including attorneys’ fees) incurred by the Agent hereunder or in connection herewith or in enforcing the Obligations of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any the Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship Debentures, in respect all cases as to which the Agent is not reimbursed by the Borrower; provided that no Secured Party shall be liable for the payment of any Lenderportion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements determined by a court of competent jurisdiction in a final proceeding to have resulted solely from the Agent’s gross negligence or willful misconduct. Nothing in this Agreement The Agent shall not be required to take any action hereunder or under the Debentures, or to prosecute or defend any of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations suit in respect of this Agreement or under the Debentures, unless the Agent is indemnified to its reasonable satisfaction by the Secured Parties against loss, costs, liability and expense. If any indemnity in favor of the other Facility Documents except as expressly set forth herein or thereinAgent shall become impaired, it may call for additional indemnity and cease to do the acts indemnified against until such additional indemnity is given.

Agent. (a) Each Lender hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), as Agent hereunder and under the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under the Facility Documents and (iii) exercise such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Facility Document, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to 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. Each Secured Party further consents hereby designates and appoints the Agent to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by serve in accordance with the terms and provisions thereofconditions of this Agreement, including any purchase option contained thereinand the Agent hereby agrees to act as such, upon the terms and conditions provided in this Agreement. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of may execute any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement by or through agents, employees or attorneys-in-fact and the other Facility Documents, shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Agent shall act solely as agent of Lenders and does not assume be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent or other document or conversation believed by it to be genuine and correct. The Agent shall be fully justified in failing or refusing to take any action unless it first receives such advice or concurrence from the Required Secured Parties. The Agent shall be under no obligation to take any action to protect, preserve or enforce any rights or interests in the Collateral or to take any action toward the execution or enforcement of the rights and remedies hereunder, whether on its own motion or on the request of any other Person, which in the opinion of the Agent may involve loss, liability or expense to it, unless the Debtor and/or one or more Secured Parties shall offer and furnish security or indemnity, reasonably satisfactory to the Agent, against loss, liability and expense to the Agent. As used herein, “Required Secured Parties” means, as of any date, the Secured Parties holding at least a majority of the outstanding principal amount of the Notes on such date. The Agent shall in all cases be fully protected in acting or refraining from acting in accordance with a request or consent of the Required Secured Parties and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Secured Parties. The Agent will not be deemed to have assumed knowledge or notice of the occurrence of any obligation toward Event of Default except with respect to payment default required to be paid to the Agent in its individual capacity, unless the Agent shall have received written notice from a Secured Party or relationship the Debtor describing such default. The Agent shall use its best efforts to notify all Secured Parties and the Debtor of agency or trust any such notice. The Agent shall take such action with or respect to such default as may be reasonably and lawfully requested by the Required Secured Parties in accordance with the terms of this Agreement subject to the requirements set forth above for any Borrower or indemnification and further subject to its right to resign under Section 13 below. In addition to any other Loan Partyindemnification provided for hereunder or otherwise in favor of the Agent, each of the Secured Parties shall indemnify upon demand the Agent and its agents, pro rata, from and against any and all actions, causes of actions, suits, losses, liabilities, damages and expenses, including reasonable attorney's fees, other than those resulting from the Agent or its agents gross negligence or willful misconduct. The Agent may perform any shall not be required to advance, expend or risk its own funds or otherwise incur personal liability in the performance of its duties or in the exercise of any rights or remedies hereunder. All funds expended by the Agent hereunder (including, or under without limitation, funds expended for reasonable attorney’s fees) shall be promptly reimbursed by the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit Debtor and/or the Secured Parties upon demand from this Section 9.13 to the extent provided by Agent. Nothing shall limit or restrict the right of the Agent shall have the same in its individual capacity to be a holder of Notes and to exercise its rights and powers under the Facility Documents thereunder, including, without limitation, its right to vote as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan a Secured Party as if it were not Agent hereunderpart of the Required Secured Parties. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have be liable or responsible in any way for any diminution in the value of the Collateral or any act or default of any warehouseman, carrier, forwarding agency, or other Person whomsoever, but the same shall be at the sole risk of the Debtor and/or the Secured Parties. Unless instructed in writing by reason of this Agreement the Required Secured Parties and indemnified by the Secured Parties, the Agent shall not be responsible for effecting any filings with the United States Patent and Trademark Office or the other Facility Documents a fiduciary relationship in United States Copyright Office with respect of any Lender. Nothing in this Agreement or to any of the other Facility Documents is intended Collateral. The Agent makes no representation or warranty as to the validity, sufficiency or shall be construed to impose upon Agent any obligations in respect of this Agreement enforceability hereof or any of the other Facility Documents except Collateral or as expressly set forth herein to the value, title, condition, or thereinadequacy of insurance on, or otherwise with respect to, the Collateral. The Agent shall not be accountable to anyone for the use or application of the proceeds of the Notes. The Agent makes no representation or warranty as to the attachment, perfection or priority of the security interests and liens contemplated hereby.

Agent. (a) Each Lender Purchaser hereby designates and appoints Third Eye Capital Corporation as the administrative agent, payment agent and collateral agent under this Agreement and the other Transaction Documents and Purchaser hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders)authorizes Third Eye Capital Corporation, as Agent hereunder and under the other Facility Documents and authorizes Agent for Purchaser, to (i) execute and deliver the Facility Documents take such action or to which it is a party and accept delivery thereof refrain from taking such action on its behalf from any Loan Party, (ii) take such under the provisions of this Agreement and the other actions on its behalf Transaction Documents and to exercise all rights, such powers and remedies and perform the such duties as are expressly delegated to Agent under by the Facility Documents terms of this Agreement and (iii) exercise the other Transaction Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Facility Document, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Transaction Documents, by or through its agents, subagents, servicers, trustees, investment managers employees or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agentsub-agents. Agent shall have no duties, obligations or responsibilities except those expressly set forth in this Agreement or in the same rights other Transaction Documents. Purchaser shall make its own independent investigation of the financial condition and powers affairs of the Company in connection with the extension of credit hereunder. Neither Agent nor any of its officers, directors, managers, members, equity owners, employees, attorneys or agents shall be liable to Purchaser for any action lawfully taken or omitted by them hereunder or under any of the other Transaction Documents, or in connection herewith or therewith; provided that the foregoing shall not prevent Agent from being be liable to the extent of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction on a final and nonappealable basis. Agent may resign from the performance of all or part of its functions and duties hereunder at any time by giving at least thirty (30) calendar days’ prior written notice to Purchaser. Such resignation shall take effect upon the acceptance by a successor Agent of appointment. Upon the acceptance of any appointment as Agent under the Facility Transaction Documents as any other Lender and may exercise or refrain from exercising the same as though it were not by a successor Agent, such successor Agent shall thereupon succeed to and Agent become vested with all the rights, powers, privileges and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of the retiring Agent and, upon the earlier of such acceptance or the effective date of the retiring Agent’s resignation, the retiring Agent shall be mechanical discharged from its duties and administrative obligations under the Transaction Documents, provided that any indemnity rights or other rights in nature. favor of such retiring Agent shall not have continue after and survive such resignation and succession. Purchaser agrees that any action taken by reason Agent in accordance with the provisions of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Transaction Documents is intended relating to or shall be construed to impose upon the Collateral, and the exercise by Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon Purchaser and Agent.

Agent. (a) Each Lender of the Lenders hereby irrevocably appoints Deerfield PartnersJPMorgan Chase Bank, L.P. (together with any successor Agent appointed by Deerfield PartnersN.A., L.P. or any successor Agent that was appointed by the Required Lenders)Toronto Branch, as the Administrative Agent hereunder and under the other Facility Documents and authorizes the Administrative Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, such powers and remedies and perform the duties as are expressly delegated to Agent under it by the Facility Documents terms of the Loan Documents, together with such actions and (iii) exercise such powers as are reasonably incidental thereto. Notwithstanding any provision to Any bank serving as the contrary contained elsewhere in this Agreement or in any other Facility Document, Administrative Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent hereunder shall have the same rights and powers under the Facility Documents in its capacity as a Lender as any other Lender and may exercise or refrain from exercising the same as though it were not the Administrative Agent, and Agent such bank and its Affiliates may accept deposits from, lend money to, invest in to and generally engage in any kind of business with each Loan Party, Borrower or any Subsidiary or other Affiliate of any Loan Party thereof as if it were not the Administrative Agent hereunder. The duties of Administrative Agent shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be mechanical subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and administrative in nature. is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by reason the Loan Documents that the Administrative Agent is required to exercise following its receipt of this Agreement written instructions from the Required Lenders (or the such other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement number or any percentage of the other Facility Documents is intended to or Lenders as shall be construed to impose upon Agent any obligations necessary under the circumstances as provided in respect of this Agreement or any of the other Facility Documents Section 10.2), and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of their Subsidiaries that is communicated to or obtained by the bank serving as the Administrative Agent or any of its Related Parties in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.2) or in the absence of its own gross negligence or willful misconduct; PROVIDED, HOWEVER, THAT IT IS THE INTENTION OF THE PARTIES HERETO THAT THE ADMINISTRATIVE AGENT BE INDEMNIFIED IN THE CASE OF ITS OWN NEGLIGENCE (OTHER THAN GROSS NEGLIGENCE), REGARDLESS OF WHETHER SUCH NEGLIGENCE IS SOLE OR CONTRIBUTORY, ACTIVE OR PASSIVE, IMPUTED, JOINT OR TECHNICAL. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub agent may perform any and all of its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Agent. Subject to the appointment and acceptance of a successor or thereinAdministrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders and Borrower. Upon any such resignation, the Required Lenders shall have the right, in good faith consultation with Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, respectively, which shall be a bank with an office in Toronto, Canada or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, as the case may be, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder (other than its obligations under Section 10.12). The fees payable by Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.3 shall continue in effect for the benefit of such retiring Administrative Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon any Loan Document or any related agreement or any document furnished hereunder or thereunder.

Agent. (a) Each Lender In order to expedite the transactions contemplated by this Agreement, Fleet Bank, N.A. is hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), to act as Agent hereunder on behalf of the Lenders. Each of the Lenders and under each subsequent holder of any Note or issuer of any Letter of Credit or acceptor of any Acceptance Draft by its acceptance thereof, irrevocably authorizes the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions action on its behalf and to exercise all rights, such powers hereunder and remedies and perform under the duties Loan Documents as are expressly specifically delegated to or required of the Agent under by the Facility Documents terms hereof and (iii) exercise the terms thereof together with such powers as are reasonably incidental thereto. Notwithstanding Neither the Agent nor any provision of its directors, officers, employees or agents shall be liable as such for any action taken or omitted to be taken by it or them hereunder or under any of the Loan Documents or in connection herewith or therewith (a) at the request or with the approval of the Required Lenders (or, if otherwise specifically required hereunder or thereunder, the consent of all the Lenders) or (b) in the absence of its or their own gross negligence or willful misconduct. The Agent is hereby expressly authorized on behalf of the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of each of the Lenders any payment of principal of or interest on the Notes outstanding hereunder and all other amounts accrued hereunder paid to the contrary contained elsewhere Agent, and promptly to distribute to each Lender its proper share of all payments so received, (b) to distribute to each Lender copies of all notices, agreements and other material as provided for in this Agreement or in the other Loan Documents as received by such Agent and (c) to take all actions with respect to this Agreement and the other Loan Documents as are specifically delegated to the Agent. In the event that (a) the Borrower fails to pay when due the principal of or interest on any Note, any amount payable under any Letter of Credit or Acceptance Draft, or any fee payable hereunder or (b) the Agent receives written notice of the occurrence of a Default or an Event of Default, the Agent within a reasonable time shall give written notice thereof to the Lenders, and shall take such action with respect to such Event of Default or other condition or event as it shall be directed to take by the Required Lenders; provided, however, that, unless and until the Agent shall have received such directions, the Agent may take such action or refrain from taking such action hereunder or under any other Facility Document, Loan Documents with respect to a Default or Event of Default as it shall deem advisable in the best interests of the Lenders. The Agent shall not have be responsible in any duty manner to any of the Lenders for the effectiveness, enforceability, perfection, value, genuineness, validity or responsibility except those expressly set forth herein; nor shall Agent have due execution of this Agreement, the Notes or any of the other Loan Documents or any other agreements or certificates, requests, financial statements, notices or opinions of counsel or for any recitals, statements, warranties or representations contained herein or in any such instrument or be deemed under any obligation to have ascertain or inquire as to the performance or observance of any fiduciary relationship with any Lender or participantof the terms, and no implied provisions, covenants, functionsconditions, responsibilities, duties, agreements or obligations or liabilities shall be read into of this Agreement or any of the other Facility Document Loan Documents or otherwise exist against Agent. Without any other agreements on the part of the Borrower and, without limiting the generality of the foregoing sentenceforegoing, the use Agent shall, in the absence of knowledge to the contrary, be entitled to accept in good faith any certificate furnished pursuant to this Agreement or any of the term “agent” herein other Loan Documents as conclusive evidence of the facts stated therein and shall be entitled to rely in good faith on any note, notice, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document which it believes in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. It is understood and agreed that the Agent may exercise its rights and powers under other agreements and instruments to which it is or may be a party, and engage in other Facility Documents transactions with reference the Borrower, as though it were not Agent of the Lenders hereunder. The Agent shall promptly give notice to Agent is not intended to connote the Lenders of the receipt or sending of any fiduciary notice, schedule, report, projection, financial statement or other implied (document or express) information pursuant to this Agreement or any of the other Loan Documents and shall promptly forward a copy thereof to each Lender. Neither the Agent nor any of its directors, officers, employees or agents shall have any responsibility to the Borrower on account of the failure or delay in performance or breach by any Lender other than the Agent of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Borrower of any of their respective obligations hereunder or in connection herewith. The Agent may consult with legal counsel selected by it in connection with matters arising under agency doctrine this Agreement or any of the other Loan Documents and any Applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create action taken or reflect only an administrative relationship between independent contracting parties. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated suffered in good faith by it in accordance with the terms hereof on behalf opinion of such Secured Party counsel shall be full justification and agrees protection to be bound by the terms and provisions thereof, including any purchase option contained thereinit. The provisions Agent may exercise any of its powers and rights and perform any duty under this Section 9.13 are solely for Agreement or any of the benefit of other Loan Documents through agents or attorneys. The Agent and the Lenders Borrower may deem and none treat the payee or most recent assignee pursuant to Section 11.03(e) hereof, as applicable, of any Note as the Borrowers or the other Loan Parties holder thereof until written notice of transfer shall have any rights been delivered as a third party beneficiary of any of provided in Section 11.03(e) hereof by such payee to the provisions in this Section 9.13. In performing its functions and duties under this Agreement Agent and the other Facility DocumentsBorrower. With respect to the Loans made hereunder, Agent shall act solely as agent of Lenders the Notes issued to it and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Credit Event applicable to it, the Agent may perform any of in its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees individual capacity and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. not as an Agent shall have the same rights rights, powers and powers duties hereunder and under the Facility Documents any other Agreement executed in connection herewith as any other Lender and may exercise or refrain from exercising the same as though it were not the Agent, and the Agent and its Affiliates affiliates may accept deposits from, lend money to, invest in to and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party the Borrower or other affiliate thereof as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or thereinAgent.

Agent. (a) Each Lender In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank is hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), to act as Agent hereunder on behalf of the Lenders. Each of the Lenders and under each subsequent holder of any Note or issuer of any Letter of Credit by its acceptance thereof, irrevocably authorizes the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions action on its behalf and to exercise all rights, such powers hereunder and remedies under the Security Documents and perform the duties other Loan Documents as are expressly specifically delegated to or required of the Agent under by the Facility Documents terms hereof and (iii) exercise the terms thereof together with such actions and powers as are reasonably incidental thereto. Notwithstanding Neither the Agent nor any provision of its directors, officers, employees or agents shall be liable as such for any action taken or omitted to be taken by it or them hereunder or under any of the Security Documents and other Loan Documents or in connection herewith or therewith (a) at the request or with the approval of the Required Lenders (or, if otherwise specifically required hereunder or thereunder, the consent of all the Lenders) or (b) in the absence of its or their own gross negligence or willful misconduct. For its services as Agent, the Borrower has agreed to pay The Chase Manhattan Bank an administration fee which has been negotiated between the parties. The Agent is hereby expressly authorized on behalf of the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of each of the Lenders any payment of principal of or interest on the Notes outstanding hereunder and all other amounts accrued hereunder which are paid to the contrary contained elsewhere Agent, and promptly to distribute to each Lender its proper share of all payments so received, (b) to distribute to each Lender copies of all notices, agreements and other material as provided for in this Agreement or in any the Security Documents and other Facility Document, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Loan Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated received by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under (c) to take all actions with respect to this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders Security Documents and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 Documents as are specifically delegated to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or therein.

Agent. (a) Each Lender of the Lenders and the Issuing Bank hereby irrevocably appoints Deerfield Partners, L.P. the Agent as its agent (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), as Agent hereunder and confirms and continues such appointment under the other Facility Documents Prior Agreement) and authorizes the Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, such powers and remedies and perform the duties as are expressly delegated to Agent under it by the Facility Documents terms of the Loan Documents, together with such actions and (iii) exercise such powers as are reasonably incidental thereto. Notwithstanding The bank serving as the Agent hereunder shall have the same rights and powers in its capacity as a Lender as any provision other Lender and may exercise the same as though it were not the Agent, and such bank and its Affiliates may accept deposits from, lend money to the contrary contained elsewhere in this Agreement or and generally engage in any kind of business with the Borrower or any Subsidiary or other Facility DocumentAffiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or responsibility exercise any discretionary powers, except those discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth herein; nor in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any Subsidiaries that is communicated to or obtained by the bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall not be deemed to have knowledge of any Default unless and until written notice thereof is given to the Agent by the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Agent. Subject to the appointment and acceptance of a successor as provided in this paragraph, the Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent. Upon the acceptance of its appointment as the Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as the Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent, any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agent, any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Bank of America, N.A., has been designated as the "syndication agent" and SunTrust Bank and Wachovia Bank, National Association have been designated as "co-documentation agents" hereunder in recognition of the level of each of their Revolving Commitments. No of such Lender is an agent for the Lenders and no such Lender shall have any obligation hereunder other than those existing in its capacity as a Lender. Without limiting the foregoing, no such Lender shall have or be deemed to have any fiduciary relationship with or duty to any Lender. The Lenders hereby authorize JPMorgan Chase Bank, N.A. (in its capacity as the "Agent" hereunder and in its capacity as the "Collateral Agent") to sign the Intercreditor Agreement on behalf of each Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities to bind each Lender to the terms thereof as if each Lender were directly a party thereto and hereby specifically authorizes the Collateral Agent to release the Liens in the Prior Collateral (as such term is defined in the Intercreditor Agreement) a contemplated by the Intercreditor Agreement. No Issuing Bank nor any of their respective Related Parties shall be read into this Agreement liable for any action taken or omitted to be taken by any other Facility Document of them hereunder or otherwise exist against Agentin connection with any Loan Document except for its or their own gross negligence or willful misconduct. Without limiting the generality of the foregoing preceding sentence, the use of the term “agent” herein and in other Facility Documents with reference to Agent is not intended to connote any fiduciary or other implied (or expressa) 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties no Issuing Bank shall have any rights as a third party beneficiary duties or responsibilities except those expressly set forth in the Loan Documents, and shall not by reason of any Loan Document be a trustee or fiduciary for any Lender or for the Agent, (b) no Issuing Bank shall be required to initiate any litigation or collection proceedings under any Loan Document, (c) no Issuing Bank shall be responsible to any Lender or the Agent for any recitals, statements, representations, or warranties contained in any Loan Document, or any certificate or other documentation referred to or provided for in, or received by any of them under, any Loan Document, or for the provisions in this Section 9.13. In performing value, validity, effectiveness, enforceability, or sufficiency of any Loan Document or any other documentation referred to or provided for therein or for any failure by any Person to perform any of its functions obligations thereunder, (d) an Issuing Bank may consult with legal counsel (including counsel for the Borrower), independent public accountants, and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume experts selected by it and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or liable for any Borrower action taken or any other Loan Party. Agent may perform any omitted to be taken in good faith by it in accordance with the advice of its duties hereundersuch counsel, accountants, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agentexperts, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent (e) shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement incur no liability under or the other Facility Documents a fiduciary relationship in respect of any LenderLoan Document by acting upon any notice, consent, certificate, or other instrument or writing believed by it to be genuine and signed or sent by the proper party or parties. Nothing As to any matters not expressly provided for by any Loan Document, each Issuing Bank shall in this Agreement all cases be fully protected in acting, or any in refraining from acting, hereunder in accordance with instructions signed by the Required Lenders, and such instructions of the other Facility Documents is intended Required Lenders and any action taken or failure to or act pursuant thereto shall be construed to impose upon Agent any obligations in respect of this Agreement or any binding on all of the other Facility Lenders and the Agent; provided, however, that no Issuing Bank shall be required to take any action which exposes it to personal liability or which is contrary to any Loan Document or applicable law. No Affiliate of any Lender shall have any right to give any direction to the Agent in the exercise of the Agent's rights and obligations under the Loan Documents nor does any such Affiliate have any right to consent to, or vote on, any matter hereunder. The Agent shall have no duties or responsibilities to any Affiliate of any Lender except as those expressly set forth herein or thereinin the Loan Documents.

Agent. (a) Each Lender hereby irrevocably appoints Deerfield Partners, L.P. (together The Agent may resign at any time by giving 30 days' prior written notice thereof to the Lenders and the Borrower and may be removed at any time with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed without cause by the Required Majority Combined Lenders); provided, as that, the Agent hereunder and under the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which may resign without having given such notice if it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and required to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under the Facility Documents and (iii) exercise such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Facility Document, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to 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 do so as a matter of market customlaw. Upon any such resignation or removal, the Majority Combined Lenders, after consulting with the Borrower and giving due consideration to any successor agent recommended by the Borrower, shall have the right to appoint a successor Agent with the consent of the Borrower (which shall not be unreasonably withheld). If no successor Agent shall have been so appointed by the Majority Combined Lenders and consented to by the Borrower, and is intended shall have accepted such appointment, within 30 days after the retiring Agent's giving of notice of resignation or the Majority Combined Lenders' removal of the retiring Agent, then the retiring Agent may, after consulting with the Borrower and giving due consideration to create or reflect only an administrative relationship between independent contracting parties. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated successor agent recommended by the terms hereof Borrower, on behalf of the Lenders, appoint a successor Agent, which shall be a commercial bank organized or licensed to do business under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $50,000,000. Upon the acceptance of any appointment as Agent hereunder by a successor Agent, such Secured Party successor Agent shall thereupon succeed to and agrees to become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be bound by discharged from its duties and obligations under this Agreement. After any retiring Agent's resignation or removal hereunder as Agent, the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the Article IX shall inure to its benefit of as to any actions taken or omitted to be taken by it while it was Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or thereinAgreement.

Agent. (a) Each Lender hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required LendersXxxxxxx), as Agent hereunder and under the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under the Facility Documents and (iii) exercise such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Facility Document, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 8.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers Borrower or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.138.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower Loan Party or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 8.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or therein.

Agent. (a) Each Lender In order to expedite the transactions contemplated by this Agreement, NatWest Bank N.A. is hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), to act as Agent hereunder on behalf of the Lenders. Each of the Lenders and under each subsequent holder of any Note by its acceptance thereof, irrevocably authorizes the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions action on its behalf and to exercise all rights, such powers hereunder and remedies under the Security Documents and perform the duties other Loan Documents as are expressly specifically delegated to or required of the Agent under by the Facility Documents terms hereof and (iii) exercise the terms thereof together with such powers as are reasonably incidental thereto. Notwithstanding Neither the Agent nor any provision of its directors, officers, employees or agents shall be liable as such for any action taken or omitted to be taken by it or them hereunder or under any of the Security Documents and other Loan Documents or in connection herewith or therewith (a) at the request or with the approval of the Required Lenders (or, if otherwise specifically required hereunder or thereunder, the consent of all the Lenders) or (b) in the absence of its or their own bad faith or willful misconduct. The Agent is hereby expressly authorized on behalf of the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of each of the Lenders any payment of principal of or interest on the Notes outstanding hereunder and all other amounts accrued hereunder paid to the contrary contained elsewhere Agent, and promptly to distribute to each Lender its proper share of all payments so received, (b) to distribute to each Lender copies of all notices, agreements and other material as provided for in this Agreement or in any the Security Documents and other Facility Document, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Loan Documents with reference to Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead, as received by 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under (c) to take all actions with respect to this Agreement and the Security Documents and other Facility DocumentsLoan Documents as are specifically delegated to the Agent. In the event that (a) Chock fails to pay when due the principal of or interest on any Note, any amount payable under any Letter of Credit or any fee payable hereunder or (b) the Agent receives written notice of the occurrence of a Default or an Event of Default, the Agent within a reasonable time shall give written notice thereof to the Lenders, and shall take such action with respect to such Event of Default or other condition or event as it shall be directed to take by the Required Lenders; provided, however, that, unless and until the Agent shall act solely have received such directions, the Agent may take such action or refrain from taking such action hereunder or under the Security Documents or other Loan Documents with respect to a Default or Event of Default as agent it shall deem advisable in the best interests of Lenders and does not assume and the Lenders. The Agent shall not be deemed responsible in any manner to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunderthe Lenders for the effectiveness, enforceability, perfection, value, genuineness, validity or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason due execution of this Agreement or Agreement, the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement Notes or any of the other Facility Loan Documents is intended or Collateral or any other agreements or certificates, requests, financial statements, notices or opinions of counsel or for any recitals, statements, warranties or representations contained herein or in any such instrument or be under any obligation to ascertain or shall be construed inquire as to impose upon Agent the performance or observance of any of the terms, provisions, covenants, conditions, agreements or obligations in respect of this Agreement or any of the other Facility Loan Documents except or any other agreements on the part of the Borrowers and, without limiting the generality of the foregoing, the Agent shall, in the absence of knowledge to the contrary, be entitled to accept any certificate furnished pursuant to this Agreement or any of the other Loan Documents as expressly set forth conclusive evidence of the facts stated therein and shall be entitled to rely on any note, notice, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document which it believes in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. It is understood and agreed that the Agent may exercise its rights and powers under other agreements and instruments to which it is or may be a party, and engage in other transactions with the Borrowers, as though it were not Agent of the Lenders hereunder. The Agent shall promptly give notice to the Lenders of the receipt or sending of any notice, schedule, report, projection, financial statement or other document or information pursuant to this Agreement or any of the other Loan Documents and shall promptly forward a copy thereof to each Lender. Neither the Agent nor any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure or delay in performance or breach by any Lender other than the Agent of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Borrowers of any of their respective obligations hereunder or in connection herewith. The Agent may consult with legal counsel selected by it in connection with matters arising under this Agreement or any of the other Loan Documents and any action taken or suffered in good faith by it in accordance with the opinion of such counsel shall be full justification and protection to it. The Agent may exercise any of its powers and rights and perform any duty under this Agreement or any of the other Loan Documents through agents or attorneys. The Agent and the Borrowers may deem and treat the payee of any Note as the holder thereof until written notice of transfer shall have been delivered as provided herein or thereinby such payee to the Agent and the Borrowers.

Agent. (a) Each Lender hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor The Agent has been appointed to act as collateral agent hereunder by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), as Agent hereunder and under the other Facility Documents and authorizes Agent each Secured Party either pursuant to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, powers and remedies and perform or by their acceptance of the duties as are expressly delegated to Agent under the Facility Documents and (iii) exercise such powers as are reasonably incidental theretobenefits hereof. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Facility Document, The Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participantobligated, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the same release or substitution of Collateral), solely in accordance with this Agreement and the Credit Agreement. Without the written consent of each Secured Party that would be affected thereby, no amendment, modification, termination, or consent shall be effective if the effect thereof would release all or substantially all of the Collateral except as though expressly provided herein. In furtherance of the foregoing provisions of this Section, each Secured Party, by its acceptance of the benefits hereof, agrees that it were not shall have no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Agent for the benefit of each Secured Party in accordance with the terms of this Section. The Agent may resign or be removed in accordance with Section 11.09 of the Credit Agreement. Upon the acceptance of any appointment as Administrative Agent under the terms of the Credit Agreement by a successor Administrative Agent, and that successor Administrative Agent shall thereby also be deemed the successor Agent and its Affiliates may lend money tosuch successor Agent shall thereupon succeed to and become vested with all the rights, invest in powers, privileges and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of the retiring or removed Agent under this Agreement, and the retiring or removed Agent under this Agreement shall promptly (i) transfer to such successor Agent all sums, Securities and other items of Collateral held hereunder, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Agent under this Agreement, and (ii) execute and deliver to such successor Agent such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor Agent of the security interests created hereunder, whereupon such retiring or removed Agent shall be mechanical discharged from its duties and administrative in natureobligations under this Agreement. Agent shall not have by reason After any retiring or removed Agent's resignation or removal hereunder as the Agent, the provisions of this Exhibit E-33 Agreement shall inure to its benefit as to any actions taken or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in omitted to be taken by it under this Agreement or any of while it was the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or thereinhereunder.

Agent. (a) Each Lender hereby irrevocably appoints Deerfield Partners, L.P. GMAC CF as Agent (together with including any successor agent as herein provided and including any person to whom the Agent appointed may delegate (but only with the consent of the Lenders if not to an affiliate of the Agent or, with respect to appraisal functions, a recognized appraiser) duties or responsibilities as permitted by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required LendersSection 14.2(h), the “Agent”) to act as Agent its agent in connection with this Agreement, the other Loan Documents and the matters contemplated hereunder and under the other Facility Documents thereunder, and authorizes irrevocably the Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take exercise such other actions on its behalf and to exercise all rights, powers and remedies and perform the duties discretions as are expressly delegated to the Agent under pursuant to this Agreement and the Facility other Loan Documents together with all such rights, powers and (iii) exercise such powers discretions as are reasonably incidental hereto or thereto. Notwithstanding any provision to the contrary contained elsewhere The Agent shall have only those duties and responsibilities which are expressly specified in this Agreement and the other Loan Documents, and it may perform such duties by or in any other Facility Document, Agent through its agents or employees. This Agreement shall not have any duty or responsibility except those expressly set forth herein; nor shall place the Agent have or be deemed to have under any fiduciary relationship with duties in respect of any Lender or participantany other Person, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Loan Document or otherwise exist against the Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents this Agreement with reference to the Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Lawapplicable 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. The Agent and any other Person to whom an Agent may delegate duties or responsibilities as permitted under Section 14.2(h) shall enjoy the same benefits, rights and protections as those provided to the Agent under this Article mutatis mutandis. Each Secured Party further consents to Lender hereby irrevocably appoints and authorizes Agent’s execution constitutes the Agent its true and delivery lawful attorney, with full power of substitution, for the purposes of carrying out any additional intercreditor or subordination agreements from time to time as contemplated by of the terms hereof on behalf hereof, collecting or enforcing any of such Secured Party the Obligations and agrees to be bound by exercising any of the terms rights and provisions thereof, including any purchase option contained therein. The provisions remedies of this Section 9.13 are solely for the benefit of Agent and the Lenders hereunder and none of the Borrowers or under the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent including, without limitation, for the purposes of Lenders and does not assume and shall not be deemed signing any documents necessary to have assumed any obligation toward perfect, register, publish, render opposable, maintain, subject to Section 14.2(b), release or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under discharge the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement ’s Liens or any of the other Facility Documents is intended to Loan Documents, and instituting any actions or proceedings. The Agent shall not be construed to impose upon Agent liable for any obligations acts or omissions or errors of judgment or mistakes of fact or law in respect of this Agreement or any its exercise of the other Facility Documents foregoing power, except as expressly set forth herein resulting from its gross negligence or thereinwilful default.

Agent. (a) Each Lender hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), as Agent hereunder and under the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under the Facility Documents and (iii) exercise such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Facility Document, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to 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. Each Secured Party further consents hereby designates and appoints the Agent to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by serve in accordance with the terms and provisions thereofconditions of this Agreement, including any purchase option contained thereinand the Agent hereby agrees to act as such, upon the terms and conditions provided in this Agreement. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of may execute any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement by or through agents, employees or attorneys-in-fact and the other Facility Documents, shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Agent shall act solely as agent of Lenders and does not assume be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent or other document or conversation believed by it to be genuine and correct. The Agent shall be fully justified in failing or refusing to take any action unless it first receives such advice or concurrence from the Required Secured Parties. The Agent shall be under no obligation to take any action to protect, preserve or enforce any rights or interests in the Collateral or to take any action toward the execution or enforcement of the rights and remedies hereunder, whether on its own motion or on the request of any other Person, which in the opinion of the Agent may involve loss, liability or expense to it, unless the Debtor and/or one or more Secured Parties shall offer and furnish security or indemnity, reasonably satisfactory to the Agent, against loss, liability and expense to the Agent. The Agent shall in all cases be fully protected in acting or refraining from acting in accordance with a request or consent of the Required Secured Parties and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Secured Parties. The Agent will not be deemed to have assumed knowledge or notice of the occurrence of any obligation toward Event of Default except with respect to payment default required to be paid to the Agent in its individual capacity, unless the Agent shall have received written notice from a Secured Party or relationship the Debtor describing such default. The Agent shall use its best efforts to notify all Secured Parties and the Debtor of agency or trust any such notice. The Agent shall take such action with or respect to such default as may be reasonably and lawfully requested by the Required Secured Parties in accordance with the terms of this Agreement subject to the requirements set forth above for any Borrower or indemnification and further subject to its right to resign under Section 13 below. In addition to any other Loan Partyindemnification provided for hereunder or otherwise in favor of the Agent, each of the Secured Parties shall indemnify upon demand the Agent and its agents, pro rata, from and against any and all actions, causes of actions, suits, losses, liabilities, damages and expenses, including reasonable attorney’s fees, other than those resulting from the Agent or its agents gross negligence or willful misconduct. The Agent may perform any shall not be required to advance, expend or risk its own funds or otherwise incur personal liability in the performance of its duties or in the exercise of any rights or remedies hereunder. All funds expended by the Agent hereunder (including, or under without limitation, funds expended for reasonable attorney’s fees) shall be promptly reimbursed by the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit Debtor and/or the Secured Parties upon demand from this Section 9.13 to the extent provided by Agent. Nothing shall limit or restrict the right of the Agent shall have the same in its individual capacity to be a holder of Prior Notes or New Secured Notes and to exercise its rights and powers under the Facility Documents thereunder, including, without limitation, its right to vote as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan a Secured Party as if it were not Agent hereunderpart of the Required Secured Parties. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have be liable or responsible in any way for any diminution in the value of the Collateral or any act or default of any warehouseman, carrier, forwarding agency, or other Person whomsoever, but the same shall be at the sole risk of the Debtor and/or the Secured Parties. Unless instructed in writing by reason of this Agreement the Required Secured Parties and indemnified by the Secured Parties, the Agent shall not be responsible for effecting any filings with the United States Patent and Trademark Office or the other Facility Documents a fiduciary relationship in United States Copyright Office with respect of any Lender. Nothing in this Agreement or to any of the other Facility Documents is intended Collateral. The Agent makes no representation or warranty as to the validity, sufficiency or shall be construed to impose upon Agent any obligations in respect of this Agreement enforceability hereof or any of the other Facility Documents except Collateral or as expressly set forth herein to the value, title, condition, or thereinadequacy of insurance on, or otherwise with respect to, the Collateral. The Agent shall not be accountable to anyone for the use or application of the proceeds of the Prior Notes or the New Secured Notes. The Agent makes no representation or warranty as to the attachment, perfection or priority of the security interests and liens contemplated hereby.

Agent. (a) Each Lender of the Lenders and the Issuing Bank hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor the Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), as Agent hereunder and under the other Facility Documents its agent and authorizes the Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, such powers and remedies and perform the duties as are expressly delegated to the Agent under by the Facility Documents terms hereof together with such actions and (iii) exercise such powers as are reasonably incidental thereto. Notwithstanding any provision to The bank serving as the contrary contained elsewhere in this Agreement or in any other Facility Document, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent hereunder shall have the same rights and powers under the Facility Documents in its capacity as a Lender as any other Lender and may exercise or refrain from exercising the same as though it were not the Agent, and Agent such bank and its Affiliates may accept deposits from, lend money to, invest in to and generally engage in any kind of business with each Loan Party, the Borrower or any Subsidiary or other Affiliate of any Loan Party thereof as if it were not the Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Agent is required to exercise in writing as directed by reason the Required Lenders (or such other number or percentage of this Agreement or the Lenders and/or other Facility Documents a fiduciary relationship in respect of Persons as shall be necessary hereunder), and (c) except as expressly set forth herein, the Agent shall not have any Lender. Nothing in this Agreement duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of the other Facility Documents its Subsidiaries that is intended communicated to or obtained by the bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders and/or other Persons as shall be construed necessary hereunder) or in the absence of its own gross negligence or willful misconduct. The Agent shall be deemed not to impose upon have knowledge of any Default unless and until written notice thereof is given to the Agent by the Borrower or a Lender, and the Agent shall not be responsible for or have any obligations duty to ascertain or inquire into (i) any statement, warranty or representation made in respect or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Agent, or (vi) the existence, genuineness, or value of any Collateral or the validity, effectiveness, perfection, priority or enforceability of Liens in or on any of the Collateral. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other Facility Documents except writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as expressly set forth herein well as activities as Agent. Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, the Agent may resign at any time by notifying the Administrative Agent, the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Administrative Agent, the Lenders, and the Issuing Bank, appoint a successor Agent. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Agent's resignation hereunder, the provisions of this Article and Section 9.03(b) shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective 80 Related Parties in respect of any actions taken or thereinomitted to be taken by any of them while it was acting as Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. EACH LENDER SEVERALLY AGREES TO INDEMNIFY (TO THE EXTENT NOT REIMBURSED BY THE BORROWER UNDER SECTION 9.03(B)) EACH OF THE AGENT AND THE ISSUING BANK AND EACH RELATED PARTY OF ANY OF THE FOREGOING PERSONS (EACH SUCH PERSON BEING CALLED IN THIS PARAGRAPH AN "INDEMNITEE") AGAINST, AND HOLD EACH INDEMNITEE HARMLESS FROM, ANY AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES AND RELATED EXPENSES, INCLUDING THE FEES, CHARGES AND DISBURSEMENTS OF ANY COUNSEL FOR ANY INDEMNITEE, INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEE ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF (COLLECTIVELY BEING CALLED IN THIS PARAGRAPH, THE "COSTS"): (I) THE EXECUTION OR DELIVERY OF THIS AGREEMENT, ANY OTHER CREDIT DOCUMENT, OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY OR THEREBY, THE PERFORMANCE BY THE PARTIES HERETO OF THEIR RESPECTIVE OBLIGATIONS HEREUNDER OR THEREUNDER OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, (II) ANY LOAN OR LETTER OF CREDIT OR THE USE OF THE PROCEEDS THEREFROM (INCLUDING ANY REFUSAL BY THE ISSUING BANK TO HONOR A DEMAND FOR PAYMENT UNDER A LETTER OF CREDIT IF THE DOCUMENTS PRESENTED IN CONNECTION WITH SUCH DEMAND DO NOT STRICTLY COMPLY WITH THE TERMS OF SUCH LETTER OF CREDIT), (III) THE COLLATERAL OR THE EXERCISE OF REMEDIES IN RESPECT OF THE COLLATERAL, (IV) ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS MATERIALS ON OR FROM ANY PROPERTY OWNED OR OPERATED BY THE BORROWER OR ANY OF ITS SUBSIDIARIES, OR ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO THE BORROWER OR ANY OF ITS SUBSIDIARIES, OR (V) ANY ACTUAL OR PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO, IN EACH CASE IN ACCORDANCE WITH SUCH LENDER'S APPLICABLE PERCENTAGE (DETERMINED AS OF THE TIME THAT THE APPLICABLE UNREIMBURSED EXPENSE OR INDEMNITY PAYMENT IS SOUGHT) OF SUCH COSTS. THE FOREGOING IS INTENDED TO INDEMNIFY AND HOLD HARMLESS EACH INDEMNITEE TO THE EXTENT THAT SUCH COSTS RESULTED FROM THE NEGLIGENCE OR ALLEGED NEGLIGENCE OF SUCH INDEMNITEE (WHETHER SOLE, COMPARATIVE, CONTRIBUTORY, OR OTHERWISE); PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS, 81 DAMAGES, LIABILITIES OR RELATED EXPENSES RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE. A person may serve as both Agent and Administrative Agent hereunder concurrently.

Agent. (a) Each Lender hereby irrevocably (subject to SECTION 10.08) designates and appoints Deerfield PartnersAT&T-CFC, L.P. (together which designation and appointment is coupled with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders)an interest, as the Agent hereunder of such Lender under this Agreement and under the other Facility Documents Transaction Documents, and each such Lender irrevocably authorizes AT&T-CFC, as the Agent of such Lender, to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof take such action on its behalf from any Loan Party, (ii) take such under the provisions of this Agreement and the other actions on its behalf Transaction Documents and to exercise all rights, such powers and remedies and perform the such duties as are expressly delegated to the Agent under by the Facility Documents terms of this Agreement and (iii) exercise the other Transaction Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding The Agent (which term as used in this sentence and in SECTION 10.05 and such first sentence of SECTION 10.06 hereof shall include reference to its Affiliates and its own and such Affiliates' officers, directors, employees and agents) shall not: (i) have any provision duties or responsibilities to be a trustee for any Lender; (ii) be responsible to the contrary Lenders for any recitals, statements, representations or warranties contained elsewhere in this Agreement Agreement, or in any certificate or other Facility Documentdocument referred to or provided for in, Agent shall not have or received by it under, this Agreement, or for the due execution, legality, value, validity, effectiveness, genuineness, enforceability, perfection or sufficiency of this Agreement, any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have Note, any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement Security Document or any other Facility Document document referred to or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” provided for herein and in other Facility Documents with reference to Agent is not intended to connote or for 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated failure by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the any other Loan Parties shall have any rights as a third party beneficiary of Person to perform any of its obligations hereunder or thereunder; (c) be required to initiate or conduct any litigation or collection proceedings hereunder, except to the provisions extent requested by the Majority Lenders; and (d) be responsible for any action taken or omitted to be taken by it hereunder or under any other document or instrument referred to or provided for herein or in this Section 9.13connection herewith, except for its own gross negligence or willful misconduct. In performing its functions The Agent may employ and duties under this Agreement consult with agents, attorneys-in-fact, public accountants and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume experts selected by it and shall not be deemed to have assumed responsible for the negligence or misconduct of any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its such agents, subagentsattorneys-in-fact, servicers, trustees, investment managers public accountants or employees and any such Person shall benefit from this Section 9.13 other experts it selects with reasonable care. Subject to the extent provided by Agent. foregoing, to ARTICLE XI and to the provisions of any intercreditor agreement among the Lenders in effect from time to time, the Agent shall have shall, on behalf of the same rights Lenders, (a) hold and powers under the Facility Documents as apply any other Lender and may exercise or refrain from exercising the same as though it were not Agentall Collateral, and Agent the proceeds thereof, at any time received by it, in accordance with the provisions of the Security Documents and its Affiliates may lend money tothis Agreement; (b) exercise any and all rights, invest in powers and generally engage in any kind remedies of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in Lenders under this Agreement or any of the Security Documents, including the giving of any consent or waiver or the entering into of any amendment; (c) execute, deliver and file UCC financing statements, mortgages, deeds of trust, lease assignments and other Facility Documents is intended to such agreements, and possess instruments on behalf of any or shall be construed to impose upon Agent any obligations in respect of this Agreement or any all of the other Facility Documents except as expressly set forth herein Lenders; and (d) in the event of acceleration of any Borrower's Indebtedness hereunder, sell or thereinotherwise liquidate or dispose of any portion of the Collateral held by it and otherwise exercise the rights of the Lenders hereunder and under the Security Documents.

Agent. The Company shall reimburse the applicable Issuing Lender on the day of a drawing under any Letter of Credit (awith the proceeds of a Loan obtained hereunder or otherwise) Each Lender hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by in same day funds in the Required Lenders), applicable currency as Agent hereunder and under the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under the Facility Documents and (iii) exercise such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement provided herein or in any other Facility Documentthe LOC Documents. Unless the Company shall immediately notify the applicable Issuing Lender and the Administrative Agent of its intent to otherwise reimburse such Issuing Lender, Agent the Company shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have requested an LOC Mandatory Borrowing in the amount of the drawing as provided in subsection 2.22(f), the proceeds of which will be used to satisfy the applicable Reimbursement Obligation. In the event that any fiduciary relationship with LOC Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under any Debtor Relief Law), the applicable Issuing Lender shall notify the Banks of such inability and each Bank hereby agrees that it shall forthwith fund (as of the date that the LOC Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Company on or participantafter such date and prior to such purchase) its LOC Participation Interest in the outstanding Reimbursement Obligations owed to such Issuing Lender. Each Bank shall promptly pay to the Administrative Agent for the account of the applicable Issuing Lender, in Dollars and in immediately available funds, the amount of such Bank’s Revolving Credit Commitment Percentage of such Reimbursement Obligation. Such payment shall be made on the day such notice is received by such Bank from such Issuing Lender if such notice is received at or before 2:00 p.m. on a Business Day, otherwise such payment shall be made at or before 12:00 noon on the Business Day next succeeding the day such notice is received. If such Bank does not pay such amount to the applicable Issuing Lender in full upon such request, such Bank shall, on demand, pay to the Administrative Agent for the account of the applicable Issuing Lender interest on the unpaid amount during the period from the date of such drawing until such Bank pays such amount to such Issuing Lender in full at a rate per annum equal to, if paid within two Business Days of the date of drawing, the Overnight Rate or, if paid thereafter, the Base Rate. Each Bank’s obligation to make such payment to the Issuing Lenders, and no implied covenantsthe right of each Issuing Lender to receive the same, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentenceabsolute and unconditional, the use of the term “agent” herein and in other Facility Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed affected by any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees circumstance whatsoever and any such Person shall benefit from this Section 9.13 without regard to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason termination of this Agreement or the other Facility Documents Commitments hereunder, the existence of a fiduciary relationship in respect Default or Event of any Lender. Nothing in this Agreement Default or any the acceleration of the other Facility Documents is intended to or Obligations hereunder and shall be construed to impose upon Agent made without any obligations in respect of this Agreement offset, abatement, withholding or any of the other Facility Documents except as expressly set forth herein or thereinreduction whatsoever.

Agent. (a) Each Lender In order to expedite the transactions contemplated by this Agreement, VXM is hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), to act as Agent hereunder on behalf of the Lenders. Each of the Lenders and under each subsequent holder of any Note, by its acceptance thereof, irrevocably authorizes the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions action on its behalf and to exercise all rights, such powers hereunder and remedies and perform under the duties Security Documents as are expressly specifically delegated to or required of the Agent under by the Facility Documents terms hereof and (iii) exercise the terms thereof together with such actions and powers as are reasonably incidental thereto. Notwithstanding Neither the Agent nor any provision of its directors, officers, employees or agents shall be liable as such for any action taken or omitted to be taken by it or them hereunder or under any of the Security Documents or in connection herewith or therewith (a) at the request or with the approval of all the Lenders or (b) in the absence of its or their own gross negligence or willful misconduct. The Company shall be entitled to rely conclusively on the instructions and decisions of the Agent as to any matter described herein, and no party hereto shall have any cause of action against the Company for any action taken by the Company in reliance upon the instructions or decisions of the Agent. Payment by the Company of the principal balance of all Loans and all accrued interest to the contrary contained elsewhere Agent shall constitute payment to all of the Lenders for all purposes of this Agreement. The Agent is hereby expressly authorized on behalf of the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of each of the Lenders any payment of principal of or interest on the Notes outstanding hereunder and all other amounts accrued hereunder which are paid to the Agent, and promptly to distribute to each Lender its proper share of all payments so received, (b) to distribute to each Lender copies of all notices, agreements and other material as provided for in this Agreement or in any other Facility Document, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Security Documents with reference to Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead, as received by 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under (c) to take all actions with respect to this Agreement and the other Facility Documents, Agent shall act solely Security Documents as agent are specifically delegated to the Agent. In the event that (a) the Company fails to pay when due the principal of Lenders and does not assume and shall not be deemed to have assumed or interest on any obligation toward or relationship of agency or trust with or for any Borrower Note or any other Loan Party. fee payable hereunder or (b) the Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any receives written notice of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or therein.occur-

Agent. (a) Each Lender hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), as Agent hereunder and under the other Facility Documents and authorizes Agent Subject to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under the Facility Documents and (iii) exercise such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Facility Documentwritten instructions of the Advisor or the Trust, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participantthe Sub-Advisor is hereby appointed the Advisor's and the Trust's agent and attorney-in-fact for the limited purposes of executing account documentation, agreements, contracts and no implied covenants, functions, responsibilities, duties, obligations or liabilities other documents as the Sub-Advisor shall be read into this Agreement or any requested by brokers, dealers, counterparties and other Facility Document or otherwise exist against Agent. Without limiting the generality persons in connection with its management of the foregoing sentenceSub-Advisor Assets, provided that, the use of the term “agent” herein and Sub-Advisor's actions in executing such documents shall comply with federal regulations, all other Facility Documents with reference federal laws applicable to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent registered investment companies and the Lenders Sub-Advisor's duties and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties obligations under this Agreement and the other Facility DocumentsTrust's governing documents. [In addition, Agent the Sub-Advisor is authorised to retain legal counsel and financial advisors, negotiate and execute documentation relating to investments in the Fund and, in connection with the foregoing, initiate or participate in legal proceedings on behalf of the Fund as reasonable in the Sub-Advisor's judgment on behalf of the Fund, provided, however that the Sub-Advisor shall act solely as agent be responsible for all costs and expenses associated with the hiring of Lenders and does not assume and any such legal counsel or financial advisors. The Sub-Advisor shall not be deemed liable to have assumed any obligation toward the Advisor or relationship of agency or trust with or the Fund for any Borrower act or any omission taken by it in good faith reliance on and in accordance with the advice of such legal counsel and financial advisors. Such documentation and legal proceedings may relate to investments to be made or sold, currently held or previously held. The Sub-Advisor is authorized, to negotiate and execute (i) documentation relating to private placements and bank debt, (ii) waivers [what waivers are these?], consents, amendments or other Loan Partymodifications relating to investments and (iii) purchase agreements, sales agreements, commitment letters, pricing letters, registration rights agreements, contributions, escrow agreements and other investment related agreements. Agent may perform any of its duties hereunderAdvisor represents that the custodian can settle such private placements.] [I thought that we discussed that this provision was not really necessary for the Fund's particular high yield mandate. if this is required to be included, or under then we will need to implement procedures about reporting on legal matters undertaken by the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 Sub-Advisor to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent Fund Board and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereundercounsel on a quarterly basis. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of let's discuss this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or thereinfurther.]

Agent. (a) Each Lender hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), as Agent hereunder and under the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under the Facility Documents and (iii) exercise such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Facility Document, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 8.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers Borrower or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.138.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower Loan Party or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 8.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or therein.

Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (a) Each Lender hereby irrevocably appoints Deerfield Partnerswho may be counsel for the Borrower), L.P. (together independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any successor such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by Deerfield Partnersthe Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, L.P. or and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor Agent that was shall have been so appointed by the Required Lenders)Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and under become vested with all the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, powers powers, privileges and remedies duties of the retiring Administrative Agent, and perform the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as are expressly delegated those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. None of the Facility Documents and (iii) exercise such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere Lenders, if any, identified in this Agreement as a Co-Syndication Agent or in any other Facility Document, Documentation Agent shall not have any right, power, obligation, liability, responsibility or duty or responsibility except under this Agreement other than those expressly set forth herein; nor applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall Agent have or be deemed to have any a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Co-Syndication Agents or participantDocumentation Agent, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph. The Lenders are not partners or co-venturers, and no implied covenants, functions, responsibilities, duties, obligations or liabilities Lender shall be read into this Agreement liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained thereinLender. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Administrative Agent shall have the same rights exclusive right on behalf of the Lenders to enforce the payment of the principal of and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of interest on any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical after the date such principal or interest has become due and administrative in nature. Agent shall not have by reason payable pursuant to the terms of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or thereinAgreement.

Agent. (a) Each Lender hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), as Agent hereunder and under the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under the Facility Documents and (iii) exercise such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Facility Document, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to 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. Each Secured Party further consents hereby designates and appoints the Agent to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by serve in accordance with the terms and provisions thereofconditions of this Agreement, including any purchase option contained thereinand the Agent hereby agrees to act as such, upon the terms and conditions provided in this Agreement. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of may execute any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement by or through agents, employees or attorneys-in-fact and the other Facility Documents, shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Agent shall act solely as agent of Lenders and does not assume be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent or other document or conversation believed by it to be genuine and correct. The Agent shall be fully justified in failing or refusing to take any action unless it first receives such advice or concurrence from the Required Secured Parties. The Agent shall be under no obligation to take any action to protect, preserve or enforce any rights or interests in the Collateral or to take any action toward the execution or enforcement of the rights and remedies hereunder, whether on its own motion or on the request of any other Person, which in the opinion of the Agent may involve loss, liability or expense to it, unless the Debtor and/or one or more Secured Parties shall offer and furnish security or indemnity, reasonably satisfactory to the Agent, against loss, liability and expense to the Agent. As used herein, “Required Secured Parties” means, as of any date, the Secured Parties holding at least a majority of the outstanding principal amount of the Notes on such date. The Agent shall in all cases be fully protected in acting or refraining from acting in accordance with a request or consent of the Required Secured Parties and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Secured Parties. The Agent will not be deemed to have assumed knowledge or notice of the occurrence of any obligation toward Event of Default except with respect to payment default required to be paid to the Agent in its individual capacity, unless the Agent shall have received written notice from a Secured Party or relationship the Debtor describing such default. The Agent shall use its best efforts to notify all Secured Parties and the Debtor of agency or trust any such notice. The Agent shall take such action with or respect to such default as may be reasonably and lawfully requested by the Required Secured Parties in accordance with the terms of this Agreement subject to the requirements set forth above for any Borrower or indemnification and further subject to its right to resign under Section 13 below. In addition to any other Loan Partyindemnification provided for hereunder or otherwise in favor of the Agent, each of the Secured Parties shall indemnify upon demand the Agent and its agents, pro rata, from and against any and all actions, causes of actions, suits, losses, liabilities, damages and expenses, including reasonable attorney’s fees, other than those resulting from the Agent or its agents gross negligence or willful misconduct. The Agent may perform any shall not be required to advance, expend or risk its own funds or otherwise incur personal liability in the performance of its duties hereunder, or under in the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan rights or remedies hereunder. All funds expended by the Agent hereunder (including, without limitation, funds expended for reasonable attorney’s fees) shall be promptly reimbursed by the Debtor and/or the Secured Parties upon demand from the Agent (together with interest thereon at a rate per annum equal to 8% from ten days following the date of demand). Nothing shall limit or restrict the right of the Agent in its individual capacity to be a holder of Notes and to exercise its rights thereunder, including, without limitation, its right to vote as a Secured Party as if it were not Agent hereunderpart of the Required Secured Parties. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have be liable or responsible in any way for any diminution in the value of the Collateral or any act or default of any warehouseman, carrier, forwarding agency, or other Person whomsoever, but the same shall be at the sole risk of the Debtor and/or the Secured Parties. Unless instructed in writing by reason of this Agreement the Required Secured Parties and indemnified by the Secured Parties, the Agent shall not be responsible for effecting any filings with the United States Patent and Trademark Office or the other Facility Documents a fiduciary relationship in United States Copyright Office with respect of any Lender. Nothing in this Agreement or to any of the other Facility Documents is intended Collateral. The Agent makes no representation or warranty as to the validity, sufficiency or shall be construed to impose upon Agent any obligations in respect of this Agreement enforceability hereof or any of the other Facility Documents except Collateral or as expressly set forth herein to the value, title, condition, or thereinadequacy of insurance on, or otherwise with respect to, the Collateral. The Agent shall not be accountable to anyone for the use or application of the proceeds of the Notes. The Agent makes no representation or warranty as to the attachment, perfection or priority of the security interests and liens contemplated hereby.

Agent. (a) Each Lender hereby irrevocably appoints Deerfield Partners, L.P. Mellon U.S. as Agent ----- (together with including any successor agent as herein provided and including any person to whom the Agent appointed may delegate duties or responsibilities as permitted by Deerfield PartnersSection 14.2(h) or as contemplated in Section 14.15, L.P. or any successor Agent that was appointed by the Required Lenders)"Agent") to act as its agent in connection with this Agreement, as Agent the other Loan Documents and the matters contemplated hereunder and under the other Facility Documents thereunder, and authorizes irrevocably the Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take exercise such other actions on its behalf and to exercise all rights, powers and remedies and perform the duties discretions as are expressly delegated to the Agent under pursuant to this Agreement and the Facility other Loan Documents together with all such rights, powers and (iii) exercise such powers discretions as are reasonably incidental hereto or thereto. Notwithstanding any provision to the contrary contained elsewhere The Agent shall have only those duties and responsibilities which are expressly specified in this Agreement and the other Loan Documents, and it may perform such duties by or in any other Facility Document, Agent through its agents or employees. This Agreement shall not have any duty or responsibility except those expressly set forth herein; nor shall place the Agent have or be deemed to have under any fiduciary relationship with duties in respect of any Lender or participantany other Person, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Loan Document or otherwise exist against the Agent. Without limiting the generality of the foregoing sentence, the use of the term “"agent” herein and " in other Facility Documents this Agreement with reference to the Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Lawapplicable 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. The Agent and any other Person to whom an Agent may delegate duties or responsibilities as permitted under Section 14.2 (h) and Section 14.5 shall enjoy the same benefits, rights and protections as those provided to the Agent under this Article 14 mutatis mutandis. Each Secured Party further consents to Lender hereby irrevocably appoints and authorizes Agent’s execution constitutes the Agent as its true and delivery lawful attorney, with full power of substitution, for the purposes of carrying out any additional intercreditor or subordination agreements from time to time as contemplated by of the terms hereof on behalf hereof, collecting or enforcing any of such Secured Party the Obligations and agrees to be bound by exercising any of the terms rights and provisions thereof, including any purchase option contained therein. The provisions remedies of this Section 9.13 are solely for the benefit of Agent and the Lenders hereunder and none of the Borrowers or under the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent including, without limitation, for the purposes of Lenders and does not assume and shall not be deemed signing any documents necessary to have assumed any obligation toward perfect, register, maintain, release or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under discharge the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement Security Interest or any of the other Facility Loan Documents is intended to and instituting any actions or proceedings. The Agent shall not be construed to impose upon Agent liable for any obligations acts or omissions or errors of judgment or mistakes of fact or law in respect of this Agreement or any its exercise of the other Facility Documents foregoing power, except as expressly set forth herein resulting from its gross negligence or thereinwilful misconduct.

Agent. (a) Each Lender of the Lenders and the Issuing Bank hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor the Administrative Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), as Agent hereunder and under the other Facility Documents its agent and authorizes the Administrative Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, such powers and remedies and perform the duties as are expressly delegated to the Administrative Agent under by the Facility Documents terms hereof, together with such actions and (iii) exercise such powers as are reasonably incidental thereto. Notwithstanding any provision to The bank serving as the contrary contained elsewhere in this Agreement or in any other Facility Document, Administrative Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent hereunder shall have the same rights and powers under the Facility Documents in its capacity as a Lender as any other Lender and may exercise or refrain from exercising the same as though it were not the Administrative Agent, and Agent such bank and its Affiliates may accept deposits from, lend money to, invest in to and generally engage in any kind of business with each Loan Party, the Borrower or any Subsidiary or other Affiliate of any Loan Party thereof as if it were not the Administrative Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary FIRST AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT – Page 74 action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by reason the Required Lenders (or such other number or percentage of this Agreement or the other Facility Documents a fiduciary relationship Lenders as shall be necessary under the circumstances as provided in respect of Section 10.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any Lender. Nothing in this Agreement duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of the other Facility Documents its Subsidiaries that is intended communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be construed necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to impose upon have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower, a Lender or the Issuing Bank, and the Administrative Agent shall not be responsible for or have any obligations duty to ascertain or inquire into (i) any statement, warranty or representation made in respect or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub agent and to the Related Parties of the Administrative Agent and any such sub agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (such consent (a) not to be unreasonably withheld or delayed and (b) not to be required if an Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of FIRST AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT – Page 75 its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent's resignation hereunder, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and not investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Facility Documents except Lender and based on such documents and information as expressly set forth herein it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or thereinhold Loans hereunder. Each Lender shall, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder and in deciding whether or to the extent to which it will continue as a lender or assign or otherwise transfer its rights, interests and obligations hereunder. Any resignation by an Issuing Bank or any Swingline Lender, acting in such capacity, pursuant to this Section may also, at the election of such Issuing Bank or Swingline Lender in writing, constitute its resignation as either or both Issuing Bank and Swingline Lender, as such notice shall specify. If the Issuing Bank, acting in such capacity, resigns as Issuing Bank, it shall retain all the rights, powers, privileges and duties of the Issuing Bank hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Issuing Bank and all LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in LC Disbursements pursuant to Section 2.05(d). If a Swingline Lender, acting in such capacity, resigns as Swingline Lender, it shall retain all the rights of the Swingline Lender provided for hereunder with respect to Swingline Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make ABR Loans or fund risk participations in outstanding Swingline Loans pursuant to Section 2.04(c). Upon the appointment by the Borrower of a successor Issuing Bank or Swingline Lender hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank or Swingline Lender, as applicable, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Bank shall issue letters of credit in substitution for FIRST AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT – Page 76 the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the resigning Issuing Bank to effectively assume the obligations of the resigning Issuing Bank with respect to such Letters of Credit.

Agent. (a) Each Lender In order to expedite the transactions contemplated by this Agreement, Fleet Capital Corporation is hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), to act as Agent hereunder on behalf of the Lenders. Each of the Lenders and under each subsequent holder of any Note or issuer of any Letter of Credit by its acceptance thereof, irrevocably authorizes the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions action on its behalf and to exercise all rights, such powers hereunder and remedies under the Security Documents and perform the duties other Loan Documents as are expressly specifically delegated to or required of the Agent under by the Facility Documents terms hereof and (iii) exercise the terms thereof together with such powers as are reasonably incidental thereto. Notwithstanding Neither the Agent nor any provision of its directors, officers, employees or agents shall be liable as such for any action taken or omitted to be taken by it or them hereunder or under any of the Security Documents and other Loan Documents or in connection herewith or therewith (a) at the request or with the approval of the Required Lenders (or, if otherwise specifically required hereunder or thereunder, the consent of all the Lenders) or (b) in the absence of its or their own gross negligence, bad faith or willful misconduct. The Agent is hereby expressly authorized on behalf of the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of each of the Lenders any payment of principal of or interest on the Notes outstanding hereunder and all other amounts accrued hereunder paid to the contrary contained elsewhere Agent, and promptly to distribute to each Lender its proper share of all payments so received, (b) to distribute to each Lender copies of all notices, agreements and other material as provided for in this Agreement or in any the Security Documents and other Facility DocumentLoan Documents as received by such Agent and (c) to take all actions with respect to this Agreement and the Security Documents and other Loan Documents as are specifically delegated to the Agent. The Lenders hereby designate DLJ Capital Funding, Agent Inc. as Documentation Agent. The Documentation Agent, in its capacity as documentation agent, shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functionsrights, responsibilities, duties, duties or obligations or liabilities shall be read into under this Agreement or any other Facility Document Loan Document. In the event that (a) the Borrowers fail to pay when due the principal of or interest on any Note, any amount payable under or with respect to any Letter of Credit, or any fee payable hereunder or (b) the Agent receives written notice of or otherwise exist against Agentbecomes aware of the occurrence of a Default or an Event of Default, the Agent shall promptly give written notice thereof to the Lenders, and shall take such action with respect to such Event of Default or other condition or event as it shall be directed to take by the Required Lenders (but shall not be required to take any such actions which violate any law or any term of this Agreement or any other Loan Document); provided, however, that, unless and until the Agent shall have received such directions, the Agent may take such action or refrain from taking such action hereunder or under the Security Documents or other Loan Documents with respect to a Default or Event of Default as it shall deem advisable in the best interests of the Lenders. Without Neither the Agent nor the Documentation Agent shall be responsible in any manner to any of the Lenders for the effectiveness, enforceability, perfection, value, genuineness, validity or due execution of this Agreement, the Notes or any of the other Loan Documents or Collateral or any other agreements or certificates, requests, financial statements, notices or opinions of counsel or for any recitals, statements, warranties or representations contained herein or in any such instrument or be under any obligation to ascertain or inquire as to the performance or observance of any of the terms, provisions, covenants, conditions, agreements or obligations of this Agreement or any of the other Loan Documents or any other agreements on the part of any Borrower or any Guarantor and, without limiting the generality of the foregoing sentenceforegoing, the use Agent shall, in the absence of knowledge to the term “agent” herein and in other Facility Documents with reference contrary, be entitled to Agent is not intended accept any certificate furnished pursuant to connote this Agreement or 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights Documents as a third party beneficiary of any conclusive evidence of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume facts stated therein and shall not be deemed entitled to rely on any note, notice, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document which it believes in good faith to be genuine and correct and to have assumed any obligation toward been signed or relationship of agency sent by the proper person or trust persons. It is understood and agreed that the Agent may exercise its rights and powers under other agreements and instruments to which it is or may be a party, and engage in other transactions with or for any Borrower or any Guarantor, as though it were not Agent of the Lenders hereunder. Neither the Agent, the Documentation Agent nor any of their respective directors, officers, employees or agents shall have any responsibility to any Borrower or any Guarantor on account of the failure or delay in performance or breach by any Lender other Loan Party. than the Agent may perform of any of its duties obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or any Borrower or any Guarantor of any of their respective obligations hereunder or in connection herewith. The Agent may consult with legal counsel selected by it in connection with matters arising under this Agreement or any of the other Loan Documents and any action taken or suffered in good faith by it in accordance with the opinion of such counsel shall be full justification and protection to it. The Agent may exercise any of its powers and rights and perform any duty under this Agreement or any of the other Loan Documents through agents or attorneys. The Agent and the Borrowers may deem and treat the payee of any Note as the holder thereof until written notice of transfer shall have been delivered as provided herein by such payee to the Agent and the Borrowers. With respect to the Loans made hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees Notes issued to it and any such Person shall benefit from this Section 9.13 other Credit Event applicable to it, the extent provided by Agent. Agent in its individual capacity and not as an Agent and the Documentation Agent in its individual capacity and not as Documentation Agent shall have the same rights rights, powers and powers duties hereunder and under the Facility Documents any other Loan Document executed in connection herewith as any other Lender and may exercise or refrain from exercising the same as though it were not the -108- Agent or the Documentation Agent, as the case may be, and the Agent, the Documentation Agent and its Affiliates their respective affiliates may accept deposits from, lend money to, invest in to and generally engage in any kind of business with each Loan Partyany Borrower, Affiliate of any Loan Party Guarantor or other affiliate thereof as if it were not the Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship Documentation Agent, as the case may be. Each Secured Party agrees (i) to reimburse the Agent and the Documentation Agent in respect the amount of such Lender's pro rata share (based on its Total Commitment hereunder) of any Lender. Nothing in this Agreement expenses incurred for the benefit of the Secured Parties by the Agent or the Documentation Agent (as applicable), including counsel fees and compensation of agents paid for services rendered on behalf of the Secured Parties, not reimbursed by the Borrowers and (ii) to indemnify and hold harmless the Agent, the Documentation Agent and any of their respective directors, officers, employees or agents, on demand, in the other Facility Documents is intended amount of its pro rata share, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it or such directors, officers, employees or agents in its or their capacity as, or acting on behalf of, the Agent or the Documentation Agent (as applicable) in any way relating to or shall be construed to impose upon Agent any obligations in respect arising out of this Agreement or any of the other Facility Loan Documents except or any action taken or omitted by it or any of them under this Agreement or any of the other Loan Documents, to the extent not reimbursed by the Borrowers; provided, however, that no Secured Party shall be liable to the Agent or the Documentation Agent's (as expressly set forth herein applicable) for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgment, suits, costs, expenses or thereindisbursements resulting from the gross negligence or willful misconduct of the Agent, the Documentation Agent or any of their respective directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agent, the Documentation Agent, Fleet, DLJ or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and any other Loan Document to which such Lender is party. Each Lender also acknowledges that it will, independently and without reliance upon the Agent, the Documentation Agent, Fleet, DLJ or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, any related agreement or any document furnished hereunder. Subject to the appointment and acceptance of a successor Agent as provided below, the Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Lenders shall have the right to appoint a successor Agent. If no successor Agent shall have been so appointed by such Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a financial institution with an office (or an affiliate with an office) in New York, New York, having a combined capital and surplus of at least $500,000,000. Upon the acceptance of any appointment as Agent hereunder by a successor financial institution, such successor shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder and under each of the other Loan Documents. After any Agent's resignation hereunder, the provisions of this Article shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Agent. The Documentation Agent may resign as Documentation Agent at any time by giving written notice thereof to the Agent. The Agent (and only the Agent) may appoint a successor Documentation Agent, which Documentation Agent shall be a Lender or an Affiliate of a Lender; provided, however, that the Agent shall have no obligation to appoint a successor Documentation Agent. The Lenders hereby acknowledge that the Agent shall be under no duty to take any discretionary action permitted to be taken by the Agent pursuant to the provisions of this Agreement or any of the other Loan Documents unless it shall be requested in writing to do so by the Required Lenders (and the Agent shall not be obligated to take any such requested action which violates applicable law or any terms of this Agreement or any other Loan Document). The Lenders hereby acknowledge that neither the Agent nor the Documentation Agent is acting as the fiduciary of, or trustee for, any of the Lenders.

Agent. (a) Each Lender In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank is hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), to act as Agent hereunder on behalf of the Lenders. Each of the Lenders and under each subsequent holder of any Note or issuer of any Letter of Credit by its acceptance thereof, irrevocably authorizes the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions action on its behalf and to exercise all rights, such powers hereunder and remedies under the Security Documents and perform the duties other Loan Documents as are expressly specifically delegated to or required of the Agent under by the Facility Documents terms hereof and (iii) exercise the terms thereof together with such actions and powers as are reasonably incidental thereto. Notwithstanding Neither the Agent nor any provision of its directors, officers, employees or agents shall be liable as such for any action taken or omitted to be taken by it or them hereunder or under any of the Security Documents and other Loan Documents or in connection herewith or therewith (a) at the request or with the approval of the Required Lenders (or, if otherwise specifically required hereunder or thereunder, the consent of all the Lenders) or (b) in the absence of its or their own gross negligence or willful misconduct. The Agent is hereby expressly authorized on behalf of the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of each of the Lenders any payment of principal of or interest on the Notes outstanding hereunder and all other amounts accrued hereunder paid to the contrary contained elsewhere Agent, and promptly to distribute to each Lender its proper share of all payments so received, (b) to distribute to each Lender copies of all notices, agreements and other material as provided for in this Agreement or in any the Security Documents and other Facility Document, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Loan Documents with reference to Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead, as received by 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under (c) to take all actions with respect to this Agreement and the Security Documents and other Facility DocumentsLoan Documents as are specifically delegated to the Agent. In the event that (a) the Borrower fails to pay when due the principal of or interest on any Note, any amount payable under any Letter of Credit, or any fee payable hereunder or (b) the Agent receives written notice of the occurrence of a Default or an Event of Default (the Agent being deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Agent by the Borrower or a Lender), the Agent promptly shall give written notice thereof to the Lenders, and shall take such action with respect to such Event of Default or other condition or event as it shall be directed to take by the Required Lenders; provided, however, that, unless and until the Agent shall act solely have received such directions, the Agent may take such action or refrain from taking such action hereunder or under the Security Documents or other Loan Documents with respect to a Default or Event of Default as agent it shall deem advisable in the best interests of Lenders and does not assume and the Lenders. The Agent shall not be deemed responsible in any manner to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunderthe Lenders for the effectiveness, enforceability, perfection, value, genuineness, validity or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason due execution of this Agreement or Agreement, the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement Notes or any of the other Facility Loan Documents is intended or Collateral or any other agreements or certificates, requests, financial statements, 81 88 notices or opinions of counsel or for any recitals, statements, warranties or representations contained herein or in any such instrument or be under any obligation to ascertain or shall be construed inquire as to impose upon Agent the performance or observance of any of the terms, provisions, covenants, conditions, agreements or obligations in respect of this Agreement or any of the other Facility Loan Documents except or any other agreements on the part of the Borrower and, without limiting the generality of the foregoing, the Agent shall, in the absence of knowledge to the contrary, be entitled to accept any certificate furnished pursuant to this Agreement or any of the other Loan Documents as expressly set forth conclusive evidence of the facts stated therein and shall be entitled to rely on any note, notice, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document which it believes in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. It is understood and agreed that the Agent may exercise its rights and powers under other agreements and instruments to which it is or may be a party, and engage in other transactions with the Borrower, as though it were not Agent of the Lenders hereunder. The Agent shall promptly give notice to the Lenders of the receipt or sending of any notice, schedule, report, projection, financial statement or other document or information pursuant to this Agreement or any of the other Loan Documents and shall promptly forward a copy thereof to each Lender. Neither the Agent nor any of its directors, officers, employees or agents shall have any responsibility to the Borrower on account of the failure or delay in performance or breach by any Lender other than the Agent of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Borrower of any of their respective obligations hereunder or in connection herewith. The Agent may consult with legal counsel selected by it in connection with matters arising under this Agreement or any of the other Loan Documents and any action taken or suffered in good faith by it in accordance with the opinion of such counsel shall be full justification and protection to it. The Agent may exercise any of its powers and rights and perform any duty under this Agreement or any of the other Loan Documents through agents or attorneys. The Agent and the Borrower may deem and treat the payee of any Note as the holder thereof until written notice of transfer shall have been delivered as provided herein or therein.by such payee to the Agent and the Borrower. With respect to the Loans made hereunder, the Notes issued to it and any other Credit Event applicable to it, the Agent in its individual capacity and not as an Agent shall have the same rights, powers and duties hereunder and under any other agreement executed in connection herewith as any other Lender and may exercise the same as though it were not the Agent, and the Agent and its affiliates may accept

Agent. (a) Each Lender hereby irrevocably appoints Deerfield PartnersThe Secured Party has been appointed to act as secured party hereunder by Lenders and, L.P. (together with any successor Agent appointed by Deerfield Partnerstheir acceptance of the benefits hereof, L.P. or any successor Agent that was appointed by the Required Lenders), as Agent hereunder and under the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under the Facility Documents and (iii) exercise such powers as are reasonably incidental theretoLender Parties. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Facility Document, Agent The Secured Party shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participantobligated, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including the same release or substitution of Collateral), solely in accordance with this Agreement and the Credit Agreement. In furtherance of the foregoing provisions of this Section, each Lender Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Lender Party that all rights and remedies hereunder may be exercised solely by the Secured Party for the benefit of Lenders and Lender Counterparties in accordance with the terms of this Section. Secured Party may resign at any time by giving thirty (30) days' prior written notice thereof to Lenders and the Grantors, and Secured Party may be removed at any time with or without cause by an instrument or concurrent instruments in writing delivered to the Grantors and Secured Party signed by the Required Lenders. Upon any such notice of resignation or any such removal, Required Lenders shall have the right, upon five (5) Business Days' notice to the Secured Party, following receipt of the Grantors' consent (which shall not be unreasonable withheld or delayed and which shall not be required while an Event of Default exists), to appoint a successor Secured Party. Upon the acceptance of any appointment as though it were not Secured Party hereunder by a successor Secured Party, that successor Secured Party under this Agreement. Upon the acceptance of any appointment as Administrative Agent under the terms of the Credit Agreement by a successor Administrative Agent, that successor Administrative Agent shall thereby also be deemed the successor Secured Party and Agent such successor Secured Party shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Secured Party under this Agreement, and the retiring or removed Secured Party under this Agreement shall promptly (i) transfer to such successor Secured Party all sums, Securities and other items of Collateral held hereunder, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Secured Party under this Agreement, and (ii) execute and deliver to such successor Secured Party such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor Secured Party of the security interests created hereunder, whereupon such retiring or removed Secured Party shall be discharged from its Affiliates may lend money to, invest in duties and generally engage in obligations under this Agreement. After any kind of business with each Loan retiring or removed Secured Party's resignation or removal hereunder as the Secured Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason the provisions of this Agreement shall inure to its benefit as to any actions taken or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in omitted to be taken by it under this Agreement or any of while it was the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or thereinSecured Party hereunder.

Agent. (a) Each Lender of the Lenders and the Issuing Bank hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor the Administrative Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), as Agent hereunder and under the other Facility Documents its agent and authorizes the Administrative Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, such powers and remedies and perform the duties as are expressly delegated to the Administrative Agent under by the Facility Documents terms hereof, together with such actions and (iii) exercise such powers as are reasonably incidental thereto. Notwithstanding any provision to The bank serving as the contrary contained elsewhere in this Agreement or in any other Facility Document, Administrative Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent hereunder shall have the same rights and powers under the Facility Documents in its capacity as a Lender as any other Lender and may exercise or refrain from exercising the same as though it were not the Administrative Agent, and Agent such bank and its Affiliates may accept deposits from, lend money to, invest in to and generally engage in any kind of business with each Loan Party, the Borrower or any Subsidiary or other Affiliate of any Loan Party thereof as if it were not the Administrative Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by reason the Required Lenders (or such other number or percentage of this Agreement or the other Facility Documents a fiduciary relationship Lenders as shall be necessary under the circumstances as provided in respect of Section 10.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any Lender. Nothing in this Agreement duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of the other Facility Documents its Subsidiaries that is intended communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. THIRD AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT – Page 76 The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be construed necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to impose upon have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower, a Lender or the Issuing Bank, and the Administrative Agent shall not be responsible for or have any obligations duty to ascertain or inquire into (i) any statement, warranty or representation made in respect or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub agent and to the Related Parties of the Administrative Agent and any such sub agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower (such consent (a) not to be unreasonably withheld or delayed and (b) not to be required if an Event of Default has occurred and is continuing), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its THIRD AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT – Page 77 predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent's resignation hereunder, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and not investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Facility Documents except Lender and based on such documents and information as expressly set forth herein it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or thereinhold Loans hereunder. Each Lender shall, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder and in deciding whether or to the extent to which it will continue as a lender or assign or otherwise transfer its rights, interests and obligations hereunder. Any resignation by an Issuing Bank or any Swingline Lender, acting in such capacity, pursuant to this Section may also, at the election of such Issuing Bank or Swingline Lender in writing, constitute its resignation as either or both Issuing Bank and Swingline Lender, as such notice shall specify. If the Issuing Bank, acting in such capacity, resigns as Issuing Bank, it shall retain all the rights, powers, privileges and duties of the Issuing Bank hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Issuing Bank and all LC Exposure with respect thereto, including the right to require the Lenders to make ABR Loans or fund risk participations in LC Disbursements pursuant to Section 2.05(d). If a Swingline Lender, acting in such capacity, resigns as Swingline Lender, it shall retain all the rights of the Swingline Lender provided for hereunder with respect to Swingline Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make ABR Loans or fund risk participations in outstanding Swingline Loans pursuant to Section 2.04(c). Upon the appointment by the Borrower of a successor Issuing Bank or Swingline Lender hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank or Swingline Lender, as applicable, (b) the retiring Issuing Bank and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the resigning Issuing Bank to effectively assume the obligations of the resigning Issuing Bank with respect to such Letters of Credit.

Agent. (a) Each Lender of the Sellers hereby irrevocably authorizes, directs and appoints Deerfield PartnersDr. Sxxxxxxx Xxx (the “Agent”) to act as sole and exclusive agent, L.P. (together attorney-in-fact and representative of each Seller with any successor Agent appointed by Deerfield Partnersrespect to all matters arising under, L.P. in connection with or any successor Agent that was appointed by the Required Lenders)relating to this Agreement, as Agent hereunder and under the other Facility Documents and authorizes Agent to including, without limitation, (i) execute determining, giving and deliver the Facility Documents to which it is a party receiving notices and accept delivery thereof on its behalf from any Loan Partyprocesses under this Agreement, (ii) take such other actions on its behalf performing the rights and duties expressly assigned to exercise all rightsthe Agent hereunder, powers and remedies and perform the duties as are expressly delegated to Agent under the Facility Documents and (iii) exercise taking all actions and incurring all expenses as the Agent shall reasonably deem necessary or prudent in connection with any of the foregoing, all on such powers terms and in such manner as are reasonably incidental theretohe deems appropriate in Agent’s sole and absolute discretion. Notwithstanding Any such actions taken, exercises of rights, power or authority, and any provision decision, determination, waiver, amendment or agreement made by the Agent consistent herewith, shall be absolutely and irrevocably binding on each Seller as if such Seller personally had taken such action, exercised such rights, power or authority or made such decision, determination, waiver, amendment or agreement in such Seller’s individual capacity, and no Seller shall have the right to object, dissent, protest or otherwise contest the contrary contained elsewhere in this Agreement same. Any action required to be taken by a Seller hereunder or in any other Facility Documentsuch action which a Seller, at his, her or its election, has the right to take hereunder, shall be taken only and exclusively by the Agent and no Seller acting on his own shall be entitled to take any such action; provided that Agent shall not have the authority to: (1) change the obligations of any duty Seller under Article 8 of this Agreement; (2) change the definition of Pro Rata Share or responsibility except those expressly set forth hereinthe manner in which it is calculated; nor shall Agent have (3) amend or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into terminate this Agreement (including pursuant to Sections 10.4 and 10.5) if the effect of such amendment or any termination affects a Seller (other Facility Document than Agent) adversely; or otherwise exist against Agent. Without limiting (4) waive this Agreement (including pursuant to Sections 10.4 and 10.5), unless the generality affect of the foregoing sentence, the use of the term “agent” herein such waiver affects each Seller proportionately and in other Facility Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or thereinmanner.

Agent. (a) Each Lender hereby irrevocably appoints Deerfield PartnersThe Secured Party has been appointed to act as secured party hereunder by Lenders and, L.P. (together with any successor Agent appointed by Deerfield Partnerstheir acceptance of the benefits hereof, L.P. or any successor Agent that was appointed by the Required Lenders), as Agent hereunder and under the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under the Facility Documents and (iii) exercise such powers as are reasonably incidental theretoBeneficiaries. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Facility Document, Agent The Secured Party shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participantobligated, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including the same release or substitution of Collateral), solely in accordance with this Agreement and the Credit Agreement. In furtherance of the foregoing provisions of this Section, each Beneficiary, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Beneficiary that all rights and remedies hereunder may be exercised solely by the Secured Party for the benefit of Lenders and Lender Counterparties in accordance with the terms of this Section. Secured Party may resign at any time by giving thirty (30) days' prior written notice thereof to Lenders and the Grantors, and Secured Party may be removed at any time with or without cause by an instrument or concurrent instruments in writing delivered to the Grantors and Secured Party signed by the Required Lenders. Upon any such notice of resignation or any such removal, Required Lenders shall have the right, upon five (5) Business Days' notice to the Secured Party, following receipt of the Grantors' consent (which shall not be unreasonable withheld or delayed and which shall not be required while an Event of Default exists), to appoint a successor Secured Party. Upon the acceptance of any appointment as though it were not Secured Party hereunder by a successor Secured Party, that successor Secured Party shall thereby be deemed the successor Secured Party under this Agreement. Upon the acceptance of any appointment as Administrative Agent under the terms of the Credit Agreement by a successor Administrative Agent, that successor Administrative Agent shall thereby also be deemed the successor Secured Party and Agent such successor Secured Party shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Secured Party under this Agreement, and the retiring or removed Secured Party under this Agreement shall promptly (i) transfer to such successor Secured Party all sums, Securities and other items of Collateral held hereunder, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Secured Party under this Agreement, and (ii) execute and deliver to such successor Secured Party such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor Secured Party of the security interests created hereunder, whereupon such retiring or removed Secured Party shall be discharged from its Affiliates may lend money to, invest in duties and generally engage in obligations under this Agreement. After any kind of business with each Loan retiring or removed Secured Party's resignation or removal hereunder as the Secured Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason the provisions of this Agreement shall inure to its benefit as to any actions taken or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in omitted to be taken by it under this Agreement or any of while it was the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or thereinSecured Party hereunder.

Agent. (a) Each Lender hereby irrevocably appoints Deerfield Partners, L.P. BACAN as Agent ----- (together with including any successor agent as herein provided and including any person to whom the Agent appointed may delegate (but only with the consent of the Instructing Group if not to an affiliate of the Agent or a recognized appraiser) duties or responsibilities as permitted by Deerfield PartnersSection 14.2(h) or as contemplated in Section 14.15, L.P. or any successor Agent that was appointed by the Required Lenders)"Agent") to act as its agent in connection with this Agreement, as Agent the other Loan Documents and the matters contemplated hereunder and under the other Facility Documents thereunder, and authorizes irrevocably the Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take exercise such other actions on its behalf and to exercise all rights, powers and remedies and perform the duties discretions as are expressly delegated to the Agent under pursuant to this Agreement and the Facility other Loan Documents together with all such rights, powers and (iii) exercise such powers discretions as are reasonably incidental hereto or thereto. Notwithstanding any provision to the contrary contained elsewhere The Agent shall have only those duties and responsibilities which are expressly specified in this Agreement and the other Loan Documents, and it may perform such duties by or in any other Facility Document, Agent through its agents or employees. This Agreement shall not have any duty or responsibility except those expressly set forth herein; nor shall place the Agent have or be deemed to have under any fiduciary relationship with duties in respect of any Lender or participantany other Person, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Loan Document or otherwise exist against the Agent. Without limiting the generality of the foregoing sentence, the use of the term “"agent” herein and " in other Facility Documents this Agreement with reference to the Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Lawapplicable 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. The Agent and any other Person to whom an Agent may delegate duties or responsibilities as permitted under Section 14.2 (h) and Section 14.5 shall enjoy the same benefits, rights and protections as those provided to the Agent under this Article mutatis mutandis. Each Secured Party further consents to Lender hereby irrevocably appoints and authorizes Agent’s execution constitutes the Agent its true and delivery lawful attorney, with full power of substitution, for the purposes of carrying out any additional intercreditor or subordination agreements from time to time as contemplated by of the terms hereof on behalf hereof, collecting or enforcing any of such Secured Party the Obligations and agrees to be bound by exercising any of the terms rights and provisions thereof, including any purchase option contained therein. The provisions remedies of this Section 9.13 are solely for the benefit of Agent and the Lenders hereunder and none of the Borrowers or under the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent including, without limitation, for the purposes of Lenders and does not assume and shall not be deemed signing any documents necessary to have assumed any obligation toward perfect, register, maintain, release or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under discharge the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement Security Interest or any of the other Facility Loan Documents is intended to and instituting any actions or proceedings. The Agent shall not be construed to impose upon Agent liable for any obligations acts or omissions or errors of judgment or mistakes of fact or law in respect of this Agreement or any its exercise of the other Facility Documents foregoing power, except as expressly set forth herein resulting from its gross negligence or thereinwilful default.

Agent. (a) Each Lender hereby irrevocably designates and appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), Foothill as Agent hereunder its representative under this Agreement and under the other Facility Loan Documents and each Lender hereby irrevocably authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof take such action on its behalf from any under the provisions of this Agreement and each other Loan Party, (ii) take such other actions on its behalf Document and to exercise all rights, such powers and remedies and perform the such duties as are expressly delegated to Agent under by the Facility Documents and (iii) exercise terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Notwithstanding Agent agrees to act as such on the express conditions contained in this Section 16. The provisions of this Section 16 are solely for the benefit of Agent, the Lenders, and Borrowers shall have no rights as a third party beneficiary of any of the provisions contained herein. Any provision to the contrary contained elsewhere in this Agreement or in any other Facility DocumentLoan Document notwithstanding, Agent shall not have any duty duties or responsibility responsibilities, except those expressly set forth herein; , nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participantLender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Loan Document or otherwise exist against Agent; it being expressly understood and agreed that the use of the word "Agent" is for convenience only, that Foothill is merely the representative of the Lenders, and only has the contractual duties set forth herein. Except as expressly otherwise provided in this Agreement, 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 that Agent expressly is entitled to take or assert under or pursuant to this Agreement and the other Loan Documents. Without limiting the generality of the foregoing sentenceforegoing, the use or of any other provision of the term “agent” herein and in other Facility Loan Documents with reference that provides rights or powers to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. agree that Agent shall have the same right to exercise the following powers as long as this Agreement remains in effect: (a) maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Obligations, the Collateral, the Collections, and related matters, (b) execute or file any and all financing or similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect to the Loan Documents, (c) make Advances, for itself or on behalf of Lenders as provided in the Loan Documents, (d) exclusively receive, apply, and distribute the Collections as provided in the Loan Documents, (e) open and maintain such bank accounts and cash management accounts as Agent deems necessary and appropriate in accordance with the Loan Documents for the foregoing purposes with respect to the Collateral and the Collections, (f) perform, exercise, and enforce any and all other rights and powers under remedies of the Facility Documents as Lender Group with respect to Borrowers, the Obligations, the Collateral, the Collections, or otherwise related to any other Lender and may exercise or refrain from exercising the of same as though it were not Agentprovided in the Loan Documents, and (g) incur and pay such Lender Group Expenses as Agent may deem necessary or appropriate for the performance and fulfillment of its Affiliates may lend money to, invest in functions and generally engage in any kind of business with each powers pursuant to the Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or thereinDocuments.

Agent. (a) Each Lender hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), as Agent hereunder and under the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under the Facility Documents Documents, (iii) act as agent of the Lenders for purposes of acquiring, holding, enforcing and perfecting all Liens granted by the Loan Parties on the Collateral to secure any of the Obligations and (iiiiv) exercise such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Facility Document, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or therein.

Agent. (a) Each Lender of the Sellers hereby irrevocably authorizes, directs and appoints Deerfield PartnersDr. Xxxxxxxx Xxx (the “Agent”) to act as sole and exclusive agent, L.P. (together attorney-in-fact and representative of each Seller with any successor Agent appointed by Deerfield Partnersrespect to all matters arising under, L.P. in connection with or any successor Agent that was appointed by the Required Lenders)relating to this Agreement, as Agent hereunder and under the other Facility Documents and authorizes Agent to including, without limitation, (i) execute determining, giving and deliver the Facility Documents to which it is a party receiving notices and accept delivery thereof on its behalf from any Loan Partyprocesses under this Agreement, (ii) take such other actions on its behalf performing the rights and duties expressly assigned to exercise all rightsthe Agent hereunder, powers and remedies and perform the duties as are expressly delegated to Agent under the Facility Documents and (iii) exercise taking all actions and incurring all expenses as the Agent shall reasonably deem necessary or prudent in connection with any of the foregoing, all on such powers terms and in such manner as are reasonably incidental theretohe deems appropriate in Agent’s sole and absolute discretion. Notwithstanding Any such actions taken, exercises of rights, power or authority, and any provision decision, determination, waiver, amendment or agreement made by the Agent consistent herewith, shall be absolutely and irrevocably binding on each Seller as if such Seller personally had taken such action, exercised such rights, power or authority or made such decision, determination, waiver, amendment or agreement in such Seller’s individual capacity, and no Seller shall have the right to object, dissent, protest or otherwise contest the contrary contained elsewhere in this Agreement same. Any action required to be taken by a Seller hereunder or in any other Facility Documentsuch action which a Seller, at his, her or its election, has the right to take hereunder, shall be taken only and exclusively by the Agent and no Seller acting on his own shall be entitled to take any such action; provided that Agent shall not have the authority to: (1) change the obligations of any duty Seller under Article 8 of this Agreement; (2) change the definition of Pro Rata Share or responsibility except those expressly set forth hereinthe manner in which it is calculated; nor shall Agent have (3) amend or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into terminate this Agreement (including pursuant to Sections 10.4 and 10.5) if the effect of such amendment or any termination affects a Seller (other Facility Document than Agent) adversely; or otherwise exist against Agent. Without limiting (4) waive this Agreement (including pursuant to Sections 10.4 and 10.5), unless the generality affect of the foregoing sentence, the use of the term “agent” herein such waiver affects each Seller proportionately and in other Facility Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or thereinmanner.

Agent. (a) Each Lender hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), as Agent hereunder and under the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under the Facility Documents and (iii) exercise such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Facility Document, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or therein.

Agent. (a) Each Lender In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank is hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), to act as Agent hereunder on behalf of the Lenders. Each of the Lenders and under each subsequent holder of any Note or issuer of any Letter of Credit by its acceptance thereof, irrevocably authorizes the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions action on its behalf and to exercise all rights, such powers hereunder and remedies under the Security Documents and perform the duties other Loan Documents as are expressly specifically delegated to or required of the Agent under by the Facility Documents terms hereof and (iii) exercise the terms thereof together with such powers as are reasonably incidental thereto. Notwithstanding Neither the Agent nor any provision of its directors, officers, employees or agents shall be liable as such for any action taken or omitted to be taken by it or them hereunder or under any of the Security Documents and other Loan Documents or in connection herewith or therewith (a) at the request or with the approval of the Required Lenders (or, if otherwise specifically required hereunder or thereunder, the consent of all the Lenders) or (b) in the absence of its or their own gross negligence or willful misconduct. The Agent is hereby expressly authorized on behalf of the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of each of the Lenders any payment of principal of or interest on the Notes outstanding hereunder and all other amounts accrued hereunder paid to the contrary contained elsewhere Agent, and promptly to distribute to each Lender its proper share of all payments so received, (b) to distribute to each Lender copies of all notices, agreements and other material as provided for in this Agreement or in the Security Documents and other Loan Documents as received by such Agent and (c) to take all actions with respect to this Agreement and the Security Documents and other Loan Documents as are specifically delegated to the Agent. In the event that (a) any Borrower fails to pay when due the principal of or interest on any Note, any amount payable under any Letter of Credit, or any fee payable hereunder or (b) the Agent receives written notice of the occurrence of a Default or an Event of Default, the Agent within a reasonable time shall give written notice thereof to the Lenders, and shall take such action with respect to such Event of Default or other Facility Documentcondition or event as it shall be directed to take by the Required Lenders; provided, however, that, unless and until the Agent shall have received such directions, the Agent may take such action or refrain from taking such action hereunder or under the Security Documents or other Loan Documents with respect to a Default or Event of Default as it shall deem advisable in the best interests of the Lenders. The Agent shall not have be responsible in any duty manner to any of the Lenders for the effectiveness, enforceability, perfection, value, genuineness, validity or responsibility except those expressly set forth herein; nor shall Agent have due execution of this Agreement, the Notes or any of the other Loan Documents or Collateral or any other agreements or certificates, requests, financial statements, notices or opinions of counsel or for any recitals, statements, warranties or representations contained herein or in any such instrument or be deemed under any obligation to have ascertain or inquire as to the performance or observance of any fiduciary relationship with any Lender or participantof the terms, and no implied provisions, covenants, functionsconditions, responsibilities, duties, agreements or obligations or liabilities shall be read into of this Agreement or any of the other Facility Document Loan Documents or otherwise exist against Agent. Without any other agreements on the part of the Borrowers and, without limiting the generality of the foregoing sentenceforegoing, the use Agent shall, in the absence of knowledge to the contrary, be entitled to accept any certificate furnished pursuant to this Agreement or any of the term “agent” herein other Loan Documents as conclusive evidence of the facts stated therein and shall be entitled to rely on any note, notice, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document which it believes in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. It is understood and agreed that the Agent may exercise its rights and powers under other agreements and instruments to which it is or may be a party, and engage in other Facility Documents transactions with reference the Borrowers, as though it were not Agent of the Lenders hereunder. The Agent shall promptly give notice to Agent is not intended to connote the Lenders of the receipt or sending of any fiduciary notice, schedule, report, projection, financial statement or other implied (document or express) information pursuant to this Agreement or any of the other Loan Documents and shall promptly forward a copy thereof to each Lender. Neither the Agent nor any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure or delay in performance or breach by any Lender other than the Agent of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Borrowers of any of their respective obligations hereunder or in connection herewith. The Agent may consult with legal counsel selected by it in connection with matters arising under agency doctrine this Agreement or any of the other Loan Documents and any Applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create action taken or reflect only an administrative relationship between independent contracting parties. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated suffered in good faith by it in accordance with the terms hereof on behalf opinion of such Secured Party counsel shall be full justification and agrees protection to be bound by the terms and provisions thereof, including any purchase option contained thereinit. The provisions Agent may exercise any of its powers and rights and perform any duty under this Section 9.13 are solely for Agreement or any of the benefit of other Loan Documents through agents or attorneys. The Agent and the Lenders Borrowers may deem and none treat the payee of any Note as the Borrowers or the other Loan Parties holder thereof until written notice of transfer shall have any rights been delivered as a third party beneficiary of any of provided herein by such payee to the provisions in this Section 9.13. In performing its functions and duties under this Agreement Agent and the other Facility DocumentsBorrowers. With respect to the Loans made hereunder, Agent shall act solely as agent of Lenders the Notes issued to it and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Credit Event applicable to it, the Agent may perform any of in its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees individual capacity and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. not as an Agent shall have the same rights rights, powers and powers duties hereunder and under the Facility Documents any other agreement executed in connection herewith as any other Lender and may exercise or refrain from exercising the same as though it were not the Agent, and the Agent and its Affiliates affiliates may accept deposits from, lend money to, invest in to and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party the Borrowers or other affiliate thereof as if it were not the Agent. Each of the Lenders hereby acknowledges that the Agent and/or one or more Affiliates of the Agent may at any time and from time to time be a holder of equity interests in a Loan Party. Each Lender agrees (i) to reimburse the Agent in the amount of such Lender's pro rata share (based on its Commitment hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect ) of any Lender. Nothing expenses incurred for its own benefit and for the benefit of the Lenders by the Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, not reimbursed by the Borrowers and (ii) to indemnify and hold harmless the Agent and any of its directors, officers, employees or agents, on demand, in this Agreement the amount of its pro rata share, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as the Agent or any of the other Facility Documents is intended them in any way relating to or shall be construed to impose upon Agent any obligations in respect arising out of this Agreement or any of the other Facility Loan Documents except or any action taken or omitted by it or any of them under this Agreement or any of the other Loan Documents, to the extent not reimbursed by the Borrowers; provided, however, that no Lender shall be liable to the Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgment, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of the Agent or any of its directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as expressly set forth herein it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and any other Loan Document to which such Lender is party. Each Lender also acknowledges that it will, independently and without reliance upon the Agent or thereinany other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, any related agreement or any document furnished hereunder. Subject to the appointment and acceptance of a successor Agent as provided below, the Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Lenders shall have the right to appoint a successor Agent. If no successor Agent shall have been so appointed by such Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a bank with an office (or an affiliate with an office) in New York, New York, having a combined capital and surplus of at least $500,000,000. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder and under each of the other Loan Documents. After any Agent's resignation hereunder, the provisions of this Article shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Agent. The Lenders hereby acknowledge that the Agent shall be under no duty to take any discretionary action permitted to be taken by the Agent pursuant to the provisions of this Agreement or any of the other Loan Documents unless it shall be requested in writing to do so by the Required Lenders. The Lenders hereby further acknowledge that the Agent is not acting as the fiduciary of, or the trustee for, any of the Lenders.

Agent. (a) Each Lender hereby irrevocably appoints Deerfield PartnersEffective only upon the Effective Time, Century Capital Partners III, L.P. (together is hereby appointed as agent and attorney-in-fact for each Equity Holder, for and on behalf of the Equity Holders, to act as Agent for Equity Holders under this Agreement and each other Transaction Agreement, and to give and receive notices and communications, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with any successor Agent appointed by Deerfield Partnersorders of courts and awards of arbitrators with respect to claims for indemnification, L.P. to authorize delivery to Parent or any successor Indemnitee of any payment hereunder, and to take all actions necessary or appropriate in the judgment of Agent that was appointed by for the Required Lenders), as accomplishment of the foregoing in accordance with the terms and provisions of this Agreement and each other Transaction Agreements. Notices or communications to or from Agent hereunder shall constitute notice to or from each Equity Holder. The appointment of Agent pursuant to this Section 10.02 shall be irrevocable except as otherwise provided herein or by non-waivable provisions of Applicable Law. Parent may rely upon any such written decision, consent or instruction of Agent as being the decision, consent or instruction of each and under the other Facility Documents and authorizes every Equity Holder. The Agent is not entitled to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under the Facility Documents and (iii) exercise such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in amend this Agreement or in take any other Facility Document, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed actions relating to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement prior to the Effective Time. The Agent may resign upon not less than twenty (20) Business Days' prior written notice to Parent and the Equity Holders. The Equity Holders by the vote or any other Facility Document or otherwise exist against Agent. Without limiting the generality written consent of the foregoing sentence, the use Equity Holders holding a majority-in-interest of the term “agent” herein and in other Facility Documents with reference Merger Consideration remaining to be paid hereunder may remove the 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated upon not less than twenty (20) Business Days' prior written notice to Parent. Any vacancy in the position of the Agent may be filled by the terms hereof on behalf Equity Holders holding a majority-in-interest of such Secured Party and agrees the Merger Consideration remaining to be bound by the terms and provisions thereof, including any purchase option contained thereinpaid hereunder. The provisions Any successor Agent shall acknowledge in writing to Parent his acceptance of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights his appointment as a third party beneficiary of any of the provisions in this Section 9.13Agent. In performing its functions and duties under this Agreement Parent and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed Indemnitees are hereby relieved from any liability to have assumed any obligation toward or relationship of agency or trust with or Person for any Borrower acts done by them in accordance with such decision, consent or any other Loan Party. Agent may perform any instruction of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or therein.

Agent. (a) Each Lender In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank is hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), to act as Agent hereunder on behalf of the Lenders. Each of the Lenders and under each subsequent holder of any Note or issuer of any Letter of Credit by its acceptance thereof, irrevocably authorizes the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions action on its behalf and to exercise all rights, such powers hereunder and remedies under the Security Documents and perform the duties other Loan Documents as are expressly specifically delegated to or required of the Agent under by the Facility Documents terms hereof and (iii) exercise the terms thereof together with such powers as are reasonably incidental thereto. Notwithstanding Neither the Agent nor any provision of its directors, officers, employees or agents shall be liable as such for any action taken or omitted to be taken by it or them hereunder or under any of the Security Documents and other Loan Documents or in connection herewith or therewith (a) at the request or with the approval of the Required Lenders (or, if otherwise specifically required hereunder or thereunder, the consent of all the Lenders) or (b) in the absence of its or their own gross negligence or willful misconduct. The Agent is hereby expressly authorized on behalf of the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of each of the Lenders any payment of principal of or interest on the Notes outstanding hereunder and all other amounts accrued hereunder paid to the contrary contained elsewhere Agent, and promptly to distribute to each Lender its proper share of all payments so received, (b) to distribute to each Lender copies of all notices, agreements and other material as provided for in this Agreement or in any the Security Documents and other Facility Document, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Loan Documents with reference to Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead, as received by 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under (c) to take all actions with respect to this Agreement and the Security Documents and other Facility DocumentsLoan Documents as are specifically delegated to the Agent. In the event that (a) the Borrower fails to pay when due the principal of or interest on any Note, any amount payable under any Letter of Credit, or any fee payable hereunder or (b) the Agent receives written notice of the occurrence of a Default or an Event of Default, the Agent within a reasonable time shall give written notice thereof to the Lenders, and shall take such action with respect to such Event of Default or other condition or event as it shall be directed to take by the Required 73 80 Lenders; provided, however, that, unless and until the Agent shall act solely have received such directions, the Agent may take such action or refrain from taking such action hereunder or under the Security Documents or other Loan Documents with respect to a Default or Event of Default as agent it shall deem advisable in the best interests of Lenders and does not assume and the Lenders. The Agent shall not be deemed responsible in any manner to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunderthe Lenders for the effectiveness, enforceability, perfection, value, genuineness, validity or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason due execution of this Agreement or Agreement, the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement Notes or any of the other Facility Loan Documents is intended or Collateral or any other agreements or certificates, requests, financial statements, notices or opinions of counsel or for any recitals, statements, warranties or representations contained herein or in any such instrument or be under any obligation to ascertain or shall be construed inquire as to impose upon Agent the performance or observance of any of the terms, provisions, covenants, conditions, agreements or obligations in respect of this Agreement or any of the other Facility Loan Documents except or any other agreements on the part of the Borrower and, without limiting the generality of the foregoing, the Agent shall, in the absence of knowledge to the contrary, be entitled to accept any certificate furnished pursuant to this Agreement or any of the other Loan Documents as expressly set forth herein conclusive evidence of the facts stated therein and shall be entitled to rely on any note, notice, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or thereinother document which it believes in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. It is understood and agreed that the Agent may exercise its rights and powers under other agreements and instruments to which it is or may be a party, and engage in other transactions with the Borrower, as though it were not Agent of the Lenders hereunder. The Agent shall promptly give notice to the Lenders of the receipt or sending of any notice, schedule, report, projection, financial statement or other document or information pursuant to this Agreement or any of the other Loan Documents and shall promptly forward a copy thereof to each Lender. Neither the Agent nor any of its directors, officers, employees or agents shall have any responsibility to the Borrower on account of the failure or delay in performance or breach by any Lender other than the Agent of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Borrower of any of their respective obligations hereunder or in connection herewith. The Agent may consult with legal counsel selected by it in connection with matters arising under this Agreement or any of the other Loan Documents and any action taken or suffered in good faith by it in accordance with the opinion of such counsel shall be full justification and protection to it. The Agent may exercise any of its powers and rights and perform any duty under this Agreement or any of the other Loan Documents through agents or attorneys.

Agent. (a) Each In order to expedite the transactions contemplated by this Agreement, The CIT Group/Commercial Services, Inc. is hereby appointed to act as sole and exclusive Agent on behalf of the Lenders and no Lender hereby irrevocably appoints Deerfield Partnersshall exercise any of the rights or authority delegated to required of the Agent hereunder, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed powers as are reasonably incidental thereto. Each of the Lenders and each subsequent holder of any Note by its acceptance thereof, irrevocably authorizes the Required Lenders), as Agent hereunder and under the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions action on its behalf and to exercise all rights, such powers hereunder and remedies under the Security Documents and perform the duties other Loan Documents as are expressly specifically delegated to or required of the Agent under by the Facility Documents terms hereof and (iii) exercise the terms thereof together with such powers as are reasonably incidental thereto. Notwithstanding Each of the Lenders and each subsequent holder of any provision Note by its acceptance thereof, irrevocably authorizes the Agent to take such action on its behalf and to exercise such powers hereunder and under the other Loan Documents as are specifically delegated to or required of the Agent by the terms hereof and the terms thereof together with such powers as are reasonably incidental thereto. Neither the Agent nor any of its directors, officers, employees or agents shall be liable as such for any action taken or omitted to be taken by it or them hereunder or under any of the Security Documents and other Loan Documents or in connection herewith or therewith (a) at the request or with the approval of the Required Lenders (or, if otherwise specifically required hereunder or thereunder, the consent of all the Lenders) or (b) other than to the contrary contained elsewhere extent that such action or omission directly results in a loss, claim or liability arising out of the gross negligence or willful misconduct of the Agent or any of its directors, officers, employees or agents, as determined by a final judgment of a court of competent jurisdiction. The Agent is hereby expressly authorized on behalf of the Lenders, without hereby limiting any implied authority, to receive on behalf of each of the Lenders any payment of principal of or interest on the Notes outstanding hereunder and all other amounts accrued hereunder paid to the Agent, and promptly to distribute to each Lender its proper share of all payments so received. The Agent is hereby expressly authorized on behalf of the Lenders, without hereby limiting any implied authority, (a) to distribute to each Lender copies of all notices, agreements and other material as provided for in this Agreement or in any the Security Documents and other Facility Document, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Loan Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated received by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under (b) to take all actions with respect to this Agreement and the Security Documents and other Facility DocumentsLoan Documents as are specifically delegated to the Agent. In the event that (a) any Borrower fails to pay when due the principal of or interest on any Note, any amount payable under any Letter of Credit or Letter of Credit Guaranty, or any fee payable hereunder or (b) the Agent receives written notice of the occurrence of a Default or an Event of Default, the Agent within a reasonable time shall give written notice thereof to the Lenders, and the Agent (upon the occurrence and continuance of an Event of Default) shall take such action with respect to such Default or Event of Default or other condition or event as it shall be directed to take by the Required Lenders; provided, however, that, unless and until the Agent shall act solely have received such directions, the Agent may take such action or refrain from taking such action hereunder or under the Security Documents or other Loan Documents with respect to a Default or Event of Default as agent it shall deem advisable in the best interests of Lenders and does not assume and the Lenders. The Agent shall not be deemed responsible in any manner to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunderthe Lenders for the effectiveness, enforceability, perfection, value, genuineness, validity or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason due execution of this Agreement or Agreement, the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement Notes or any of the other Facility Loan Documents is intended or Collateral or any other agreements or certificates, requests, financial statements, notices or opinions of counsel or for any recitals, statements, warranties or representations contained herein or in any such instrument or be under any obligation to ascertain or shall be construed inquire as to impose upon Agent the performance or observance of any of the terms, provisions, covenants, conditions, agreements or obligations in respect of this Agreement or any of the other Facility Loan Documents except or any other agreements on the part of the Borrowers and, without limiting the generality of the foregoing, the Agent shall, in the absence of knowledge to the contrary, be entitled to accept any certificate furnished pursuant to this Agreement or any of the other Loan Documents as expressly set forth herein conclusive evidence of the facts stated therein and shall be entitled to rely on any note, notice, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or therein.other document which it believes in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. It is understood and agreed that the Agent may exercise its rights and powers under other agreements and instruments to which it is or may be a party (including, without limitation, factoring arrangements), and engage in other transactions with the Borrowers, as though it were not Agent of the Lenders hereunder. The Agent shall promptly give notice to the Lenders of the receipt or sending of any notice, schedule, report, projection, financial statement or other document or information pursuant to this Agreement or any of the other Loan Documents (other than the Factoring Agreements) and shall promptly forward a copy thereof to each Lender. Neither the Agent nor any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure or delay in performance or breach by any Lender other than the Agent of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Borrowers of any of their respective obligations hereunder or in connection herewith. The Agent may consult with legal counsel selected by it in connection with matters arising under this Agreement or any of the other Loan Documents and any action taken or suffered in good faith by it in accordance with the opinion of such counsel shall be full justification and

Agent. (a) Each Lender Column Financial, Inc. (“Column”) shall act as Agent for itself and the Co-Lenders pursuant to this Section 9.3. Column, by execution hereof, hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor accepts such appointment as Agent. Borrower acknowledges that Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by shall have the Required Lenders)sole and exclusive authority to execute and perform this Agreement and each Loan Document on behalf of itself, as a Lender and as agent for itself and the Co-Lenders. Each Co-Lender acknowledges that Agent hereunder shall retain the exclusive right to grant approvals and under the other Facility Documents give consents and authorizes Agent approvals with respect to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under the Facility Documents and (iii) exercise such powers as are reasonably incidental theretomatters requiring Lender’s consent or approval hereunder. Notwithstanding any provision anything to the contrary contained elsewhere in this Agreement Agreement, all references herein or in any other Facility DocumentLoan Document to Lender shall mean “Lender” or “Agent on behalf of Lender”, Agent as the context may require. Each Co-Lender agrees that, with respect to Required Lender Decisions (as defined in the Co-Lender Agreement), if there are two (2) or more Co-Lenders that are not Defaulting Lenders (as defined in the Co-Lender Agreement), then the approval of Co-Lenders that are not Defaulting Lenders and which cumulatively own not less than sixty percent (60%) of the then aggregate unpaid principal amount of the Loan (after subtracting the interest or interests owned by any Defaulting Lenders, given that no Defaulting Lender has voting rights under the Co-Lender Agreement) shall be required (the “Required Lender Threshold”). So long as no Event of Default has occurred and is continuing, such Required Lender Threshold may not be amended or modified without the prior written consent of Borrower (not to be unreasonably withheld, conditioned or delayed). Except as otherwise expressly provided herein, Borrower shall have any duty no obligation to recognize or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship deal directly with any Lender or participantCo-Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties Co-Lender shall have any rights as a third party beneficiary right to deal directly with Borrower with respect to the rights, benefits and obligations of Borrower under this Agreement, the Loan Documents or any one or more documents or instruments in respect thereof. Borrower may rely conclusively on the actions of Agent to bind Lender and the Co-Lenders, notwithstanding that the particular action in question may, pursuant to this Agreement be subject to the consent or direction of some or all of the provisions in this Section 9.13Co-Lenders. In performing its functions and duties Any Agent may resign as Agent of the Co-Lenders subject to the reasonable approval of Borrower (not to be unreasonably withheld, conditioned or delayed); provided, however, that Agent may resign as Agent under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward Loan Documents without Borrower’s approval or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunderconsent if (1) required by a subpoena, or under judicial or administrative process, or (2) if required by any applicable regulatory authority (including, without limitation, self-regulatory authorities (including, without limitation, FINRA)), or (3) neither Agent nor any Affiliate successor or assign doing business in the Facility DocumentsUnited States will be engaged going forward, by or through its agents, subagents, servicers, trustees, investment managers or employees and is no longer engaged in the United States of America in the business of holding interests in commercial real estate loans. Prior to the effectiveness of any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agentresignation, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of a successor Agent shall be mechanical determined by the Lenders subject to the reasonable approval of Borrower (not to be unreasonably withheld, conditioned or delayed) and administrative in nature. such successor Agent shall not have by reason be appointed effective immediately upon the effective date of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lendersuch resignation. Nothing in this Agreement or any of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or therein.The term “

Agent. (a) APPOINTMENT. Each Lender hereby irrevocably designates and appoints Deerfield Partners, L.P. (together with any successor GE Capital as its Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), as Agent hereunder under this Agreement and under the other Facility Documents Loan Documents, and each Lender hereby irrevocably authorizes Agent to (i) execute and deliver the Facility Collateral Documents and to which it is a party and accept delivery thereof take such action or to refrain from taking such action on its behalf from any under the provisions of this Agreement and the other Loan Party, (ii) take such other actions on its behalf Documents and to exercise all rights, such powers and remedies and perform the duties as are expressly delegated to Agent under the Facility Documents and (iii) exercise set forth herein or therein, together with such other powers as are reasonably incidental thereto. Notwithstanding Agent is authorized and empowered to amend, modify, or waive any provision to the contrary contained elsewhere in provisions of this Agreement or in any the other Facility Document, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Loan Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party Lenders subject to the requirement that certain of Lenders' consent be obtained in certain instances as provided in this SECTION 8.2 and agrees to be bound by the terms and provisions thereof, including any purchase option contained thereinSECTION 9.2. The provisions of this Section 9.13 SECTION 8.2 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the neither Borrower nor any other Loan Parties Credit Party shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13hereof. In performing its functions and duties under this Agreement and the other Facility DocumentsAgreement, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Credit Party. Agent may perform any of its duties hereunder, or under the Facility Loan Documents, by or through its agents, subagents, servicers, trustees, investment managers agents or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agentemployees. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunderNATURE OF DUTIES. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents Loan Documents, express or implied, is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Loan Documents except as expressly set forth herein or therein. Each Lender shall make its own independent investigation of the financial condition and affairs of each Credit Party in connection with the extension of credit hereunder and shall make its own appraisal of the creditworthiness of each Credit Party, and Agent shall have no duty or responsibility, either initially or on a continuing basis, to provide any Lender with any credit or other information with respect thereto (other than as expressly required herein). If Agent seeks the consent or approval of any Lenders to the taking or refraining from taking any action hereunder, then Agent shall send notice thereof to each Lender. Agent shall promptly notify each Lender any time that the Requisite Lenders, Requisite Revolving Lenders or Supermajority Revolving Lenders have instructed Agent to act or refrain from acting pursuant hereto. RIGHTS, EXCULPATION, ETC. Neither Agent nor any of its officers, directors, employees or agents shall be liable to any Lender for any action taken or omitted by them hereunder or under any of the Loan Documents, or in connection herewith or therewith, except that Agent shall be liable to the extent of its own gross negligence or willful misconduct as determined by a final non-appealable order by a court of competent jurisdiction. Agent shall not be liable for any apportionment or distribution of payments made by it in good faith and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse of any Lender to whom payment was due but not made, shall be to recover from other Lenders any payment in excess of the amount to which they are determined to be entitled (and such other Lenders hereby agree to return to such Lender any such erroneous payments received by them). In no event shall Agent be liable for punitive, special, consequential, incidental, exemplary or other similar damages. In performing its functions and duties hereunder, Agent shall exercise the same care which it would in dealing with loans for its own account, but neither Agent nor any of its agents or representatives shall be responsible to any Lender for any recitals, statements, representations or warranties herein or for the execution, effectiveness, genuineness, validity, enforceability, collectibility, or sufficiency of this Agreement or any of the Loan Documents or the transactions contemplated thereby, or for the financial condition of any Credit Party. Agent shall not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement or any of the Loan Documents or the financial condition of any Credit Party, or the existence or possible existence of any Default or Event of Default. Agent may at any time request instructions from Requisite Lenders, Requisite Revolving Lenders, Supermajority Revolving Lenders or all affected Lenders with respect to any actions or approvals which by the terms of this Agreement or of any of the Loan Documents Agent is permitted or required to take or to grant. If such instructions are promptly requested, Agent shall be absolutely entitled to refrain from taking any action or to withhold any approval and shall not be under any liability whatsoever to any Person for refraining from any action or withholding any approval under any of the Loan Documents until it shall have received such instructions from the Requisite Lenders, Requisite Revolving Lenders, Supermajority Revolving Lenders or such other portion of the Lenders as shall be prescribed by this Agreement. Without limiting the foregoing, no Lender shall have any right of action whatsoever against Agent as a result of Agent acting or refraining from acting under this Agreement or any of the other Loan Documents in accordance with the instructions of Requisite Lenders, Requisite Revolving Lenders, Supermajority Revolving Lenders or all affected Lenders, as applicable; and, notwithstanding the instructions of Requisite Lenders, Requisite Revolving Lenders, Supermajority Revolving Lenders or all affected Lenders, as applicable, Agent shall have no obligation to take any action if it believes, in good faith, that such action is deemed to be illegal by Agent or exposes Agent to any liability for which it has not received satisfactory indemnification in accordance with SECTION 8.2(E).

Agent. In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank (aor NationsBank, N.A. solely with respect to the Mortgages and the rights and obligations of the mortgagee thereunder) Each Lender is hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), to act as Agent hereunder on behalf of the Lenders. Each of the Lenders and under each subsequent holder of any Note or issuer of any Letter of Credit by its acceptance thereof, irrevocably authorizes the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions action on its behalf and to exercise all rights, such powers hereunder and remedies under the Security Documents and perform the duties other Loan Documents as are expressly specifically delegated to or required of the Agent under by the Facility Documents terms hereof and (iii) exercise the terms thereof together with such actions and powers as are reasonably incidental thereto. Notwithstanding Neither the Agent nor any provision of its directors, officers, employees or agents shall be liable as such for any action taken or omitted to be taken by it or them hereunder or under any of the Security Documents and other Loan Documents or in connection herewith or therewith (a) at the request or with the approval of the Required Lenders (or, if otherwise specifically required hereunder or thereunder, the consent of all the Lenders) or (b) in the absence of its or their own gross negligence or willful misconduct. Nothing in the foregoing sentence shall limit or affect the Agent's obligations and liability to the contrary contained elsewhere Borrowers hereunder. The Agent is hereby expressly authorized on behalf of the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of each of the Lenders any payment of principal of or interest on the Notes outstanding hereunder and all other amounts accrued hereunder which are paid to the Agent, and promptly to distribute to each Lender its proper share of all payments so received, (b) to distribute to each Lender copies of all notices, agreements and other material as provided for in this Agreement or in the Security Documents and other Loan Documents as received by such Agent and (c) to take all actions with respect to this Agreement and the Security Documents and other Loan Documents as are specifically delegated to the Agent. In the event that (a) the Borrowers fail to pay when due the principal of or interest on any Note, any amount payable under any Letter of Credit, or any fee payable hereunder or (b) the Agent receives written notice of the occurrence of a Default or an Event of Default (the Agent being deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Agent by a Borrower or a Lender), the Agent within a reasonable time shall give written notice thereof to the Lenders, and shall take such action with respect to such Event of Default or other Facility Documentcondition or event as it shall be directed to take by the Required Lenders; provided, however, that, unless and until the Agent shall have received such directions, the Agent may take such action or refrain from taking such action hereunder or under the Security Documents or other Loan Documents with respect to a Default or Event of Default as it shall deem advisable in the best interests of the Lenders. The Agent shall not have be responsible in any duty manner to any of the Lenders for the effectiveness, enforceability, perfection, value, genuineness, validity or responsibility except those expressly set forth herein; nor shall Agent have due execution of this Agreement, the Notes or any of the other Loan Documents or Collateral or any other agreements or certificates, requests, financial statements, notices or opinions of counsel or for any recitals, statements, warranties or representations contained herein or in any such instrument or be deemed under any obligation to have ascertain or inquire as to the performance or observance of any fiduciary relationship with any Lender or participantof the terms, and no implied provisions, covenants, functionsconditions, responsibilities, duties, agreements or obligations or liabilities shall be read into of this Agreement or any of the other Facility Document Loan Documents or otherwise exist against Agent. Without any other agreements on the part of the Borrowers and, without limiting the generality of the foregoing sentenceforegoing, the use Agent shall, in the absence of knowledge to the contrary, be entitled to accept any certificate furnished pursuant to this Agreement or any of the term “agent” herein other Loan Documents as conclusive evidence of the facts stated therein and shall be entitled to rely on any note, notice, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document which it believes in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. It is understood and agreed that the Agent may exercise its rights and powers under other agreements and instruments to which it is or may be a party, and engage in other Facility Documents transactions with reference the Borrowers, as though it were not Agent of the Lenders hereunder. The Agent shall promptly give notice to Agent is not intended to connote the Lenders of the receipt or sending of any fiduciary notice, schedule, report, projection, financial statement or other implied (document or express) information pursuant to this Agreement or any of the other Loan Documents and shall promptly forward a copy thereof to each Lender. Neither the Agent nor any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure or delay in performance or breach by any Lender other than the Agent of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Borrowers of any of their respective obligations hereunder or in connection herewith. The Agent may consult with legal counsel selected by it in connection with matters arising under agency doctrine this Agreement or any of the other Loan Documents and any Applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create action taken or reflect only an administrative relationship between independent contracting parties. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated suffered in good faith by it in accordance with the terms hereof on behalf opinion of such Secured Party counsel shall be full justification and agrees protection to be bound by the terms and provisions thereof, including any purchase option contained thereinit. The provisions Agent may exercise any of its powers and rights and perform any duty under this Section 9.13 are solely for Agreement or any of the benefit of other Loan Documents through agents or attorneys. The Agent and the Lenders Borrowers may deem and none treat the payee of any Note as the Borrowers or the other Loan Parties holder thereof until written notice of transfer shall have any rights been delivered as a third party beneficiary of any of provided herein by such payee to the provisions in this Section 9.13. In performing its functions and duties under this Agreement Agent and the other Facility DocumentsBorrowers. With respect to the Loans made hereunder, Agent shall act solely as agent of Lenders the Notes issued to it and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Credit Event applicable to it, the Agent may perform any of in its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees individual capacity and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. not as an Agent shall have the same rights rights, powers and powers duties hereunder and under the Facility Documents any other agreement executed in connection herewith as any other Lender and may exercise or refrain from exercising the same as though it were not the Agent, and the Agent and its Affiliates affiliates may accept deposits from, lend money to, invest in to and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party the Borrowers or other affiliate thereof as if it were not the Agent. Each of the Lenders hereby acknowledges that the Agent and/or one or more Affiliates of the Agent may at any time and from time to time be a holder of equity interests in a Loan Party. Each Lender agrees (i) to reimburse the Agent in the amount of such Lender's pro rata share (based on its Commitment hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect ) of any Lender. Nothing expenses incurred for its own benefit and for the benefit of the Lenders by the Agent, including counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, not reimbursed by the Borrowers and (ii) to indemnify and hold harmless the Agent and any of its directors, officers, employees or agents, on demand, in this Agreement the amount of its pro rata share, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it in its capacity as the Agent or any of the other Facility Documents is intended them in any way relating to or shall be construed to impose upon Agent any obligations in respect arising out of this Agreement or any of the other Facility Loan Documents or any action taken or omitted by it or any of them under this Agreement or any of the other Loan Documents, to the extent not reimbursed by the Borrowers; provided, however, that no Lender shall be liable to the Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgment, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of the Agent or any of its directors, officers, employees or agents. With respect to the release of Collateral, the Lenders hereby irrevocably authorize the Agent, at its option and in its discretion, to release any Lien granted to or held by the Agent upon any property covered by this Agreement or the other Loan Documents (i) upon termination of the Total Commitments and payment and satisfaction of all Obligations; (ii) constituting property being sold or disposed of in compliance with the provisions of this Agreement (and the Agent may rely in good faith conclusively on any such certificate, without further inquiry); or (iii) constituting property leased to a Borrower or any subsidiary under a lease which has expired or been terminated in a transaction permitted under this Agreement or is about to expire and which has not been, and is not intended by such Borrower or such subsidiary to be, renewed or extended; provided, however, that (x) the Agent shall not be required to execute any release on terms which, in the Agent's opinion, would expose the Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (y) such release shall not in any manner discharge, affect or impair the Obligations or any Liens upon (or obligations of any Loan Party, in respect of), all interests retained by any Loan Party, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the property covered by this Agreement or the Loan Documents. With respect to perfecting the Lenders' security interest in Collateral which, in accordance with Article 9 of the Uniform Commercial Code in any applicable jurisdiction or other applicable laws, can be perfected only by possession, each Lender hereby appoints each other Lender for the purpose of perfecting such interest. Should any Lender (other than the Agent) obtain possession of any such Collateral, such Lender shall notify the Agent and the Agent shall notify the Borrowers, and, promptly upon the Agent's request, shall deliver such Collateral to the Agent or in accordance with the Agent's instructions. Each Lender agrees that it will not have any right individually to enforce or seek to enforce this Agreement or any Loan Document or to realize upon any Collateral for the Loans, it being understood and agreed that such rights and remedies may be exercised only by the Agent. In the event that a petition seeking relief under Title 11 of the United States Code or any other Federal, state or foreign bankruptcy, insolvency, liquidation or similar law is filed by or against any Loan Party, the Agent is authorized to file a proof of claim on behalf of itself and the Lenders in such proceeding for the total amount of Obligations owed by such Loan Party. With respect to any such proof of claim which the Agent may file, each Lender acknowledges that without reliance on such proof of claim, such Lender shall make its own evaluation as to whether an individual proof of claim must be filed in respect of such Obligations owed to such Lender and, if so, take the steps necessary to prepare and timely file such individual claim. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and any other Loan Document to which such Lender is party. Each Lender also acknowledges that it will, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, any related agreement or any document furnished hereunder. Subject to the appointment and acceptance of a successor Agent as provided below, the Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Co-Agent shall have the right to become the Agent and if the Co-Agent shall decline to exercise such right then the Required Lenders shall have the right to appoint a successor Agent, with the consent of the Borrowers which shall not be unreasonably withheld or delayed (it being agreed that any Lender at such time which is a commercial bank having a combined capital and surplus of at least $500,000,000 or an affiliate of such a bank shall be deemed acceptable to the Borrowers and that the Borrowers' unwillingness to consent to the appointment of a person who is neither a Lender nor commercial bank at such time shall not be deemed unreasonable); provided, however, that no consent of the Borrowers shall be required if a Default or an Event of Default has occurred and is continuing. If no successor Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a bank with an office (or an affiliate with an office) in New York, New York, having a combined capital and surplus of at least $500,000,000. Upon the acceptance of any appointment as Agent hereunder by a successor bank, such successor shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder and under each of the other Loan Documents. After any Agent's resignation hereunder, the provisions of this Article shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Agent. The Lenders hereby acknowledge that the Agent shall be under no duty to take any discretionary action permitted to be taken by the Agent pursuant to the provisions of this Agreement or any of the other Loan Documents unless it shall be requested in writing to do so by the Required Lenders. The Lenders hereby further acknowledge that the Agent is not acting as the fiduciary of, or the trustee for, any of the Lenders and except as expressly set forth herein herein, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information communicated to the Agent by or thereinrelating to the Borrowers or any of their subsidiaries.

Agent. Xxxxxx Xxxxxx (athe “Agent”) Each Lender is hereby irrevocably appoints Deerfield Partnersappointed as agent and attorney-in-fact for each Contributor and Warrantor, L.P. (together with any successor Agent appointed by Deerfield Partnersfor and on their behalf, L.P. to act as their several and joint agent under this Agreement and each other Transaction Agreement or any successor Agent that was appointed by the Required Lenders)instrument to be executed in connection herewith, as Agent hereunder and under the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rightsgive and receive notices and communications, powers to agree to, negotiate, enter into settlements and remedies and perform the duties as are expressly delegated to Agent under the Facility Documents and (iii) exercise such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Facility Document, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participantcompromises of, and no implied covenantsdemand arbitration and comply with orders of courts and awards of arbitrators with respect to, functionsclaims for indemnification or otherwise, responsibilitiesto authorize settlement of claims by or against any Contributor or Warrantor, dutiesincluding claims for indemnification under Article IX, obligations and to take all actions necessary or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting appropriate in the generality judgment of the Agent for the accomplishment of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents accordance with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and each other Agreement or instrument to be executed in connection herewith. The Contributors and Warrantors agree that the other Facility Documents, appointment of the Agent shall act solely as agent of Lenders and does not assume pursuant to this Section 11.14 is coupled with an interest and shall not be deemed irrevocable except as provided by applicable law. Any decision, act, consent, waiver or instruction of the Agent relating to have assumed any obligation toward Agreement or relationship of agency or trust with or for any Borrower instrument to be executed in connection herewith, or any other Loan Partymatter arising thereunder or related thereto shall constitute a decision of all of the Contributors or Warrantors, as applicable, and shall be final, binding and conclusive upon each of them. Beneficiary and the Beneficiary Indemnitees may rely upon any such written decision, consent, waiver or instruction of the Agent may perform as being the decision, consent or instruction of each and every Contributor or Warrantor, as applicable. The Contributors and Warrantors hereby irrevocably release, remise, acquit and forever discharge Agent from any and all claims, liabilities, demands, actions, causes of action, damages, obligations, losses and expenses of whatsoever kind or nature, which any of its duties hereunderthem ever had, now has or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall hereafter might have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not against Agent, whether in law, arbitration, administrative proceedings, equity or otherwise, and Agent and its Affiliates may lend money towhenever accruing or maturing, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing action taken or omitted to be taken by Agent in this Agreement or any of good faith pursuant to and in reliance on the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or thereinauthority granted hereby.

Agent. (a) Each Lender of the Lenders and the Issuing Bank hereby irrevocably appoints Deerfield Partners, L.P. the Agent as its agent (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), as Agent hereunder and confirms and continues such appointment under the other Facility Documents Prior Agreement) and authorizes the Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, such powers and remedies and perform the duties as are expressly delegated to Agent under it by the Facility Documents terms of the Loan Documents, together with such actions and (iii) exercise such powers as are reasonably incidental thereto. Notwithstanding The bank serving as the Agent hereunder shall have the same rights and powers in its capacity as a Lender as any provision other Lender and may exercise the same as though it were not the Agent, and such bank and its Affiliates may accept deposits from, lend money to the contrary contained elsewhere in this Agreement or and generally engage in any kind of business with the Borrower or any Subsidiary or other Facility DocumentAffiliate thereof as if it were not the Agent hereunder. The Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or responsibility exercise any discretionary powers, except those discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth herein; in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any Subsidiaries that is communicated to or obtained by the bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall not be deemed to have knowledge of any Default unless and until written notice thereof is given to the Agent by the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Agent. Subject to the appointment and acceptance of a successor as provided in this paragraph, the Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Agent. Upon the acceptance of its appointment as the Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as the Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent, any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agent, any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. U.S. Bank National Association and Bank of America, N.A. have been designated as "documentation agent" and "syndication agent" hereunder respectively in recognition of the level of each of their Revolving Commitments. Neither U.S. Bank National Association nor Bank of America, N.A. is an agent for the Lenders and no such Lender shall Agent have any obligation hereunder other than those existing in its capacity as a Lender. Without limiting the foregoing, no such Lender shall have or be deemed to have any fiduciary relationship with or duty to any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Lender. The Lenders hereby authorize JPMorgan Chase Bank (in its capacity as the "Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein " hereunder and in other Facility Documents with reference its capacity as the " Collateral Agent") to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by sign the terms hereof following on behalf of such Secured Party each Lender and to bind each Lender to the terms thereof as if each Lender were directly a party thereto: (i) the Intercreditor Agreement and (ii) an agreement pursuant to which the Collateral Agent agrees that after receipt of the Termination Value in accordance with the Operative Agreements (as those terms are defined in the documentation governing the Synthetic Real Property Lease and provided neither the Termination Value nor any portion thereof shall have been disgorged, reclaimed or ordered to be bound by returned) and at all times thereafter: (a) each Lender and Holder (as those terms are defined in the terms documentation governing the Synthetic Real Property Lease), solely in such capacity, will no longer be deemed a "Creditor" under the Original Intercreditor Agreement nor have any obligations of a "Creditor" thereunder and provisions thereof, including any purchase option contained therein. The provisions (b) Bank of this Section 9.13 are solely America as agent for the benefit of Agent and Synthetic Lenders (as defined in the Lenders and none of Original Intercreditor Agreement), solely in such capacity, shall no longer be deemed an "Agent" under the Borrowers or the other Loan Parties shall Original Intercreditor Agreement nor have any rights as a third party beneficiary obligations of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by an "Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or therein" thereunder.

Agent. (a) Each Lender of the Lenders hereby irrevocably designates and appoints Deerfield Partners, L.P. (together with any successor First Union National Bank of North Carolina as the Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), as Agent hereunder of such Lender under this Agreement and under the other Facility Documents Loan Documents, and each such Lender irrevocably authorizes First Union National Bank of North Carolina as the Agent for such Lender to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof take such action on its behalf from any under the provisions of this Agreement and the other Loan Party, (ii) take such other actions on its behalf Documents and to exercise all rights, such powers and remedies and perform the such duties as are expressly delegated to the Agent under by the Facility Documents terms of this Agreement and (iii) exercise such other Loan Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any such other Facility DocumentLoan Documents, the Agent shall not have any duty duties or responsibility responsibilities, except those expressly set forth herein; nor shall Agent have herein and therein, or be deemed to have any fiduciary relationship with any Lender or participantLender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any the other Facility Document Loan Documents or otherwise exist against Agent. Without limiting To the generality extent any provision of this Agreement permits action by Agent, Agent shall, subject to the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of 9, take such action if directed in writing to do so by Requisite Lenders. . Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of may execute any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care. . Neither Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be (a) liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with this Agreement or the other Loan Documents (except for its or such Person's own gross negligence or willful misconduct), or (b) responsible in any manner to any Lender for any recitals, statements, representations or warranties made by any Borrower or any officer thereof contained in this Agreement or the other Loan Documents or in any certificate, report, statement or other document referred to or provided for in, or received by Agent under or in connection with, this Agreement or the other Loan Documents or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or the other Loan Documents or for any failure of any Borrower to perform its obligations hereunder or thereunder. Agent shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement, or to inspect the Properties, books or records of any Borrower. . Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message, statement, order 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 Borrowers), independent accountants and other experts selected by Agent. Agent may deem and treat the payee of any promissory note issued pursuant to this Agreement as the owner thereof for all purposes unless such promissory note shall have been transferred in accordance with Section 11.10 hereof. Agent shall be fully justified in failing or refusing to take any action under this Agreement and the other Loan Documents unless it shall first receive such advice or concurrence of Requisite Lenders as it deems appropriate or it shall first be indemnified to its satisfaction by Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action except for its own gross negligence or willful misconduct. Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement in accordance with a request of Requisite Lenders, and such request and any action taken or failure to act solely as agent of Lenders and does not assume and pursuant thereto shall be binding upon all Lenders. . Agent shall not be deemed to have assumed knowledge or notice of the occurrence of any obligation toward Event of Default or relationship Potential Event of agency Default hereunder unless Agent has received notice from a Lender or trust with or for any Borrower referring to this Agreement, describing such Event of Default or Potential Event of Default and stating that such notice is a "notice of default". In the event that Agent receives such a notice, Agent shall promptly give notice thereof to Lenders. The Agent shall take such action with respect to such Event of Default or Potential Event of Default as shall be reasonably directed by Requisite Lenders; provided that unless and until Agent shall have received such directions, Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Event of Default or Potential Event of Default as it shall deem advisable in the best interests of Lenders. . Each Lender expressly acknowledges that neither Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by Agent hereinafter taken, including any review of the affairs of Borrower, shall be deemed to constitute any representation or warranty by Agent to any Lender. Each Lender represents to Agent that it has, independently and without reliance upon Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of each Borrower and FSI and made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any to make such Person shall benefit from this Section 9.13 investigation as it deems necessary to inform itself as to the extent provided business, operations, property, financial and other condition and creditworthiness of each Borrower and FSI. Except for notices, reports and other documents expressly required to be furnished to the Lenders by Agent. Agent shall have hereunder or by the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not AgentLoan Documents, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, financial and other condition or creditworthiness of each Borrower and FSI which may come into the possession of Agent or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates. . Each Lender agrees to indemnify Agent in its capacity as such (to the extent not reimbursed by reason Borrowers and without limiting the obligation of Borrowers to do so), ratably according to the respective amounts of their Pro Rata Share of the Commitments, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time (including, without limitation, at any time following the payment of the Loans) be imposed on, incurred by or asserted against Agent in any way relating to or arising out of this Agreement or the other Facility Documents a fiduciary relationship Loan Documents, or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by Agent under or in respect of any Lender. Nothing in this Agreement or connection with any of the other Facility Documents is intended to or foregoing; provided that no Lender shall be construed to impose upon Agent liable for the payment of any obligations portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from Agent's bad faith, gross negligence or willful misconduct. The agreements in respect of this Agreement or any Section 9.7 shall survive the repayment of the Loans and all other Facility Documents except as expressly set forth herein or thereinamounts payable hereunder.

Agent. (a) Each Lender hereby irrevocably appoints Deerfield PartnersMagna shall act as agent on behalf of all Beneficiaries for all purposes hereunder, L.P. (together with any successor Agent appointed by Deerfield Partnersincluding without limitation for purposes of executing this Agreement on behalf of all Beneficiaries; provided, L.P. or any successor Agent that, in the event that was appointed by MID becomes the Required Lenders), as Agent hereunder and under the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Note Agent under the Facility Documents Note Agreement pursuant to Section 9.7 thereof, MID shall become the agent on behalf of all Beneficiaries for all purposes hereunder upon (and only upon) the execution of an acknowledgement hereto by Equity Obligor, MID and Magna reasonably satisfactory to each of Equity Obligor and MID pursuant to which each of MID and Magna agrees and acknowledges that MID, effective as of the date of such acknowledgement, assumes such agency role and that Magna, effective as of the date of such acknowledgement, resigns from such agency role, it being understood that Equity Obligor shall be entitled to treat Magna as the agent on behalf of all Beneficiaries for all purposes hereunder unless and until such acknowledgement is executed by Equity Obligor, MID and Magna. Magna represents and warrants to Equity Obligor (iii) exercise or, in the event MID assumes such powers as are reasonably incidental thereto. Notwithstanding any provision agency role pursuant to the contrary contained elsewhere acknowledgement described in the preceding sentence, MID shall represent and warrant to Equity Obligor in such acknowledgement) that, so long as it acts as agent hereunder, it has all necessary power and authority to act, including without limitation having all approvals or consents necessary to act, as agent on behalf of all Beneficiaries for all purposes hereunder. If the foregoing accurately reflects our understanding, please indicate your acceptance of the terms and conditions set forth in this Agreement or by signing in any other Facility Documentthe area indicated below and returning a countersigned original to us, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into whereupon this Agreement or any other Facility Document or otherwise exist against Agentshall constitute a binding agreement among the parties hereto. Without limiting the generality Sincerely, OCM ACQUISITIONCO, LLC By: /s/ Xxxxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxx Title: Manager By: /s/ Xxxxxx Xxxx Name: Xxxxxx X. Xxxx Title: Manager Agreed to and accepted as of the foregoing sentencedate first above written by MAGNA ENTERTAINMENT CORP., the use of the term “agent” herein and in other Facility Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or therein.AS AGENT By: /s/ B. Tohana Name: Blake Tohana Title: Authorized Signatory By: /s/ Xxxx Xxx Xxxxxx Name: Xxxx Xxx Xxxxxx Title: Authorized Signatory

Agent. (a) APPOINTMENT. Each Lender hereby irrevocably designates and appoints Deerfield Partners, L.P. (together with any successor GE Capital as its Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), as Agent hereunder under this Agreement and under the other Facility Documents Loan Documents, and each Lender hereby irrevocably authorizes Agent to (i) execute and deliver the Facility Collateral Documents and to which it is a party and accept delivery thereof take such action or to refrain from taking such action on its behalf from any under the provisions of this Agreement and the other Loan Party, (ii) take such other actions on its behalf Documents and to exercise all rights, such powers and remedies and perform the duties as are expressly delegated to Agent under the Facility Documents and (iii) exercise set forth herein or therein, together with such other powers as are reasonably incidental thereto. Notwithstanding Agent is authorized and empowered to amend, modify, or waive any provision to the contrary contained elsewhere in provisions of this Agreement or in any the other Facility Document, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Loan Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party Lenders subject to the requirement that certain of Lenders' consent be obtained in certain instances as provided in this SECTION 8.2 and agrees to be bound by the terms and provisions thereof, including any purchase option contained thereinSECTION 9.2. The provisions of this Section 9.13 SECTION 8.2 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the neither Borrower nor any other Loan Parties Credit Party shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13hereof. In performing its functions and duties under this Agreement and the other Facility DocumentsAgreement, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Credit Party. Agent may perform any of its duties hereunder, or under the Facility Loan Documents, by or through its agents, subagents, servicers, trustees, investment managers agents or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agentemployees. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunderNATURE OF DUTIES. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents Loan Documents, express or implied, is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Loan Documents except as expressly set forth herein or therein. Each Lender shall make its own independent investigation of the financial condition and affairs of each Credit Party in connection with the extension of credit hereunder and shall make its own appraisal of the creditworthiness of each Credit Party, and Agent shall have no duty or responsibility, either initially or on a continuing basis, to provide any Lender with any credit or other information with respect thereto (other than as expressly required herein). If Agent seeks the consent or approval of any Lenders to the taking or refraining from taking any action hereunder, then Agent shall send notice thereof to each Lender. Agent shall promptly notify each Lender any time that the Requisite Lenders or such other portion of the Lenders as shall be prescribed by this Agreement, have instructed Agent to act or refrain from acting pursuant hereto. RIGHTS, EXCULPATION, ETC. Neither Agent nor any of its officers, directors, employees or agents shall be liable to any Lender for any action taken or omitted by them hereunder or under any of the Loan Documents, or in connection herewith or therewith, except that Agent shall be liable to the extent of its own gross negligence or willful misconduct as determined by a final non-appealable order by a court of competent jurisdiction. Agent shall not be liable for any apportionment or distribution of payments made by it in good faith and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse of any Lender to whom payment was due but not made, shall be to recover from other Lenders any payment in excess of the amount to which they are determined to be entitled (and such other Lenders hereby agree to return to such Lender any such erroneous payments received by them). In no event shall Agent be liable for punitive, special, consequential, incidental, exemplary or other similar damages. In performing its functions and duties hereunder, Agent shall exercise the same care which it would in dealing with loans for its own account, but neither Agent nor any of its agents or representatives shall be responsible to any Lender for any recitals, statements, representations or warranties herein or for the execution, effectiveness, genuineness, validity, enforceability, collectibility, or sufficiency of this Agreement or any of the Loan Documents or the transactions contemplated thereby, or for the financial condition of any Credit Party. Agent shall not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement or any of the Loan Documents or the financial condition of any Credit Party, or the existence or possible existence of any Default or Event of Default. Agent may at any time request instructions from Requisite Lenders or all affected or such other portion of the Lenders as shall be prescribed by this Agreement shall have the right at any time give instructions to Agent, with respect to any actions or approvals which by the terms of this Agreement or of any of the Loan Documents Agent is permitted or required to take or to grant. If such instructions are promptly requested by Agent, Agent shall be absolutely entitled to refrain from taking any action or to withhold any approval and shall not be under any liability whatsoever to any Person for refraining from any action or withholding any approval under any of the Loan Documents until it shall have received such instructions from the Requisite Lenders or such other portion of the Lenders as shall be prescribed by this Agreement. Without limiting the foregoing, no Lender shall have any right of action whatsoever against Agent as a result of Agent acting or refraining from acting under this Agreement or any of the other Loan Documents in accordance with the instructions of Requisite Lenders or such other portion of the Lenders as shall be prescribed by this Agreement, as applicable; and, notwithstanding the instructions of Requisite Lenders or such other portion of the Lenders as shall be prescribed by this Agreement, as applicable, Agent shall have no obligation to take any action if it believes, in good faith, that such action is deemed to be illegal by Agent or exposes Agent to any liability for which it has not received satisfactory indemnification in accordance with SECTION 8.2(E).

Agent. (a) Each Lender In order to expedite the transactions contemplated by this Agreement, Fleet Capital Corporation is hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), to act as Agent hereunder on behalf of the Lenders. Each of the Lenders and under each subsequent holder of any Note or issuer of any Letter of Credit by its acceptance thereof, irrevocably authorizes the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions action on its behalf and to exercise all rights, such powers hereunder and remedies under the Security Documents and perform the duties other Loan Documents as are expressly specifically delegated to or required of the Agent under by the Facility Documents terms hereof and (iii) exercise the terms thereof together with such powers as are reasonably incidental thereto. Notwithstanding Neither the Agent nor any provision of its directors, officers, employees or agents shall be liable as such for any action taken or omitted to be taken by it or them hereunder or under any of the Security Documents and other Loan Documents or in connection herewith or therewith (a) at the request or with the approval of the Required Lenders (or, if otherwise specifically required hereunder or thereunder, the consent of all the Lenders) or (b) in the absence of its or their own gross negligence, bad faith or willful misconduct. The Agent is hereby expressly authorized on behalf of the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of each of the Lenders any payment of principal of or interest on the Notes outstanding hereunder and all other amounts accrued hereunder paid to the contrary contained elsewhere Agent, and promptly to distribute to each Lender its proper share of all payments so received, (b) to distribute to each Lender copies of all notices, agreements and other material as provided for in this Agreement or in any the Security Documents and other Facility DocumentLoan Documents as received by such Agent and (c) to take all actions with respect to this Agreement and the Security Documents and other Loan Documents as are specifically delegated to the Agent. The Lenders hereby designate DLJ Capital Funding, Agent Inc. as Documentation Agent. The Documentation Agent, in its capacity as documentation agent, shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functionsrights, responsibilities, duties, duties or obligations or liabilities shall be read into under this Agreement or any other Facility Document Loan Document. In the event that (a) the Borrowers fail to pay when due the principal of or interest on any Note, any amount payable under or with respect to any Letter of Credit, or any fee payable hereunder or (b) the Agent receives written notice of or otherwise exist against Agentbecomes aware of the occurrence of a Default or an Event of Default, the Agent shall promptly give written notice thereof to the Lenders, and shall take such action with respect to such Event of Default or other condition or event as it shall be directed to take by the Required Lenders (but shall not be required to take any such actions which violate any law or any term of this Agreement or any other Loan Document); provided, however, that, unless and until the Agent shall have received such directions, the Agent may take such action or refrain from taking such action hereunder or under the Security Documents or other Loan Documents with respect to a Default or Event of Default as it shall deem advisable in the best interests of the Lenders. Without Neither the Agent nor the Documentation Agent shall be responsible in any manner to any of the Lenders for the effectiveness, enforceability, perfection, value, genuineness, validity or due execution of this Agreement, the Notes or any of the other Loan Documents or Collateral or any other agreements or certificates, requests, financial statements, notices or opinions of counsel or for any recitals, statements, warranties or representations contained herein or in any such instrument or be under any obligation to ascertain or inquire as to the performance or observance of any of the terms, provisions, covenants, conditions, agreements or obligations of this Agreement or any of the other Loan Documents or any other agreements on the part of any Borrower or any Guarantor and, without limiting the generality of the foregoing sentenceforegoing, the use Agent shall, in the absence of knowledge to the term “agent” herein and in other Facility Documents with reference contrary, be entitled to Agent is not intended accept any certificate furnished pursuant to connote this Agreement or 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights Documents as a third party beneficiary of any conclusive evidence of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume facts stated therein and shall not be deemed entitled to rely on any note, notice, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document which it believes in good faith to be genuine and correct and to have assumed any obligation toward been signed or relationship of agency sent by the proper person or trust persons. It is understood and agreed that the Agent may exercise its rights and powers under other agreements and instruments to which it is or may be a party, and engage in other transactions with or for any Borrower or any Guarantor, as though it were not Agent of the Lenders hereunder. Neither the Agent, the Documentation Agent nor any of their respective directors, officers, employees or agents shall have any responsibility to any Borrower or any Guarantor on account of the failure or delay in performance or breach by any Lender other Loan Party. than the Agent may perform of any of its duties obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or any Borrower or any Guarantor of any of their respective obligations hereunder or in connection herewith. The Agent may consult with legal counsel selected by it in connection with matters arising under this Agreement or any of the other Loan Documents and any action taken or suffered in good faith by it in accordance with the opinion of such counsel shall be full justification and protection to it. The Agent may exercise any of its powers and rights and perform any duty under this Agreement or any of the other Loan Documents through agents or attorneys. The Agent and the Borrowers may deem and treat the payee of any Note as the holder thereof until written notice of transfer shall have been delivered as provided herein by such payee to the Agent and the Borrowers. With respect to the Loans made hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees Notes issued to it and any such Person shall benefit from this Section 9.13 other Credit Event applicable to it, the extent provided by Agent. Agent in its individual capacity and not as an Agent and the Documentation Agent in its individual capacity and not as Documentation Agent shall have the same rights rights, powers and powers duties hereunder and under the Facility Documents any other Loan Document executed in connection herewith as any other Lender and may exercise or refrain from exercising the same as though it were not the Agent or the Documentation Agent, as the case may be, and the Agent, the Documentation Agent and its Affiliates their respective affiliates may accept deposits from, lend money to, invest in to and generally engage in any kind of business with each Loan Partyany Borrower, Affiliate of any Loan Party Guarantor or other affiliate thereof as if it were not the Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship Documentation Agent, as the case may be. Each Secured Party agrees (i) to reimburse the Agent and the Documentation Agent in respect the amount of such Lender's pro rata share (based on its Total Commitment hereunder) of any Lender. Nothing in this Agreement expenses incurred for the benefit of the Secured Parties by the Agent or the Documentation Agent (as applicable), including counsel fees and compensation of agents paid for services rendered on behalf of the Secured Parties, not reimbursed by the Borrowers and (ii) to indemnify and hold harmless the Agent, the Documentation Agent and any of their respective directors, officers, employees or agents, on demand, in the other Facility Documents is intended amount of its pro rata share, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against it or such directors, officers, employees or agents in its or their capacity as, or acting on behalf of, the Agent or the Documentation Agent (as applicable) in any way relating to or shall be construed to impose upon Agent any obligations in respect arising out of this Agreement or any of the other Facility Loan Documents except or any action taken or omitted by it or any of them under this Agreement or any of the other Loan Documents, to the extent not reimbursed by the Borrowers; provided, however, that no Secured Party shall be liable to the Agent or the Documentation Agent's (as expressly set forth herein applicable) for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgment, suits, costs, expenses or thereindisbursements resulting from the gross negligence or willful misconduct of the Agent, the Documentation Agent or any of their respective directors, officers, employees or agents. Each Lender acknowledges that it has, independently and without reliance upon the Agent, the Documentation Agent, Fleet, DLJ or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and any other Loan Document to which such Lender is party. Each Lender also acknowledges that it will, independently and without reliance upon the Agent, the Documentation Agent, Fleet, DLJ or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, any related agreement or any document furnished hereunder. Subject to the appointment and acceptance of a successor Agent as provided below, the Agent may resign at any time by notifying the Lenders and the Borrowers. Upon any such resignation, the Lenders shall have the right to appoint a successor Agent. If no successor Agent shall have been so appointed by such Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a financial institution with an office (or an affiliate with an office) in New York, New York, having a combined capital and surplus of at least $500,000,000. Upon the acceptance of any appointment as Agent hereunder by a successor financial institution, such successor shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations hereunder and under each of the other Loan Documents. After any Agent's resignation hereunder, the provisions of this Article shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Agent. The Documentation Agent may resign as Documentation Agent at any time by giving written notice thereof to the Agent. The Agent (and only the Agent) may appoint a successor Documentation Agent, which Documentation Agent shall be a Lender or an Affiliate of a Lender; provided, however, that the Agent shall have no obligation to appoint a successor Documentation Agent. The Lenders hereby acknowledge that the Agent shall be under no duty to take any discretionary action permitted to be taken by the Agent pursuant to the provisions of this Agreement or any of the other Loan Documents unless it shall be requested in writing to do so by the Required Lenders (and the Agent shall not be obligated to take any such requested action which violates applicable law or any terms of this Agreement or any other Loan Document). The Lenders hereby acknowledge that neither the Agent nor the Documentation Agent is acting as the fiduciary of, or trustee for, any of the Lenders.

Agent. (a) Each Lender In order to expedite the transactions contemplated by this Agreement, WFB is hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), to act as Agent hereunder on behalf of the Lenders. Each of the Lenders and under each subsequent holder of any Note by its acceptance thereof, irrevocably authorizes the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions action on its behalf and to exercise all rights, such powers and remedies and perform the duties hereunder as are expressly specifically delegated to or required of the Agent under by the Facility Documents terms hereof and (iii) exercise the terms thereof together with such powers as are reasonably incidental thereto. Notwithstanding WFB hereby accepts its appointment to act as Agent on behalf of the Lenders and the authorizations set forth herein. Neither the Agent nor any provision of its directors, officers, employees or agents shall be liable as such for any action taken or omitted to be taken by it or them hereunder or in connection herewith or therewith (a) at the request or with the approval of the Required Lenders (or, if otherwise specifically required hereunder or thereunder, the consent of all the Lenders) or (b) in the absence of its or their own gross negligence (but not ordinary negligence) or willful misconduct. The Agent is hereby expressly authorized on behalf of the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of each of the Lenders any payment of principal of or interest on the Notes and any payment of amounts payable to WFB in connection with any Letter of Credit paid to the contrary contained elsewhere Agent, and all other amounts accrued hereunder paid to the Agent, and promptly to distribute to each Lender its proper share of all payments so received, (b) to distribute to each Lender copies of all notices, agreements and other material as provided for in this Agreement as received by such Agent and (c) to take all actions with respect to this Agreement and the Credit Transactions as are specifically delegated to the Agent. In the event that (a) the Borrower fails to pay when due the principal of or interest on any Note or any fee payable hereunder or any amount payable under or in connection with any Letter of Credit or (b) the Agent receives written notice of the occurrence of a Default or an Event of Default, the Agent within a reasonable time shall give written notice thereof to the Lenders, and shall take such action with respect to such Event of Default or other condition or event as it shall be directed to take by the Required Lenders; provided, however, that, unless and until the Agent shall have received such directions, the Agent may take such action or refrain from taking such action hereunder with respect to a Default or Event of Default as it shall deem advisable in the best interests of the Lenders, except to the extent that this Agreement expressly requires that such action be taken, or not be taken, only with the consent or upon the authorization of the Required Lenders or all of the Lenders. The Agent shall not be responsible in any manner to any of the Lenders for the effectiveness, enforceability, perfection, priority, value, genuineness, validity or due execution of this Agreement or the other Credit Documents with respect thereto or any other agreements or certificates, requests, financial statements, notices or opinions of counsel or for any recitals, statements, warranties or representations contained herein or in any such instrument or be under any obligation to ascertain or inquire as to the performance or observance of any of the terms, provisions, covenants, conditions, agreements or obligations of this Agreement or any of the other Facility DocumentCredit Documents or any other agreements on the part of the Borrower and, without limiting the generality of the foregoing, the Agent shall, in the absence of knowledge to the contrary, be entitled to accept any certificate furnished pursuant to this Agreement as conclusive evidence of the facts stated therein and shall be entitled to rely on any note, notice, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document which it believes in good faith to be genuine and correct and to have been signed or sent by the proper Person or Persons. It is understood and agreed that the Agent may exercise its rights and powers under other agreements and instruments to which it is or may be a party, and engage in other transactions with the Borrower, as though it were not Agent of the Lenders hereunder. The Agent shall not promptly give notice to the Lenders of the receipt or sending of any notice, schedule, report, projection, financial statement or other document or information pursuant to this Agreement and shall promptly forward a copy thereof to each Lender. Neither the Agent nor any of its directors, officers, employees or agents shall have any duty responsibility to the Borrower on account of the failure or responsibility except those expressly set forth herein; nor shall Agent have delay in performance or be deemed to have any fiduciary relationship with breach by any Lender other than the Agent of any of its obligations hereunder or participant, and no implied covenants, functions, responsibilities, duties, to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Borrower of any of their respective obligations hereunder or liabilities shall be read into in connection herewith. The Agent may consult with legal counsel selected by it in connection with matters arising under this Agreement or any other Facility Credit Document and any action taken or otherwise exist against Agent. Without limiting suffered in good faith by it in accordance with the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf opinion of such Secured Party counsel shall be full justification and agrees protection to be bound by the terms and provisions thereof, including any purchase option contained thereinit. The provisions Agent may exercise any of its powers and rights and perform any duty under this Section 9.13 are solely for the benefit of Agreement or any other Credit Documents through agents or attorneys. The Agent and the Lenders Borrower may deem and none treat the payee of any Note as the Borrowers or the other Loan Parties holder thereof until written notice of transfer shall have any rights been delivered as a third party beneficiary of any of provided herein by such payee to the provisions in this Section 9.13. In performing its functions and duties under this Agreement Agent and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan PartyBorrower. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 With respect to the extent provided Loans, the Notes and the Letters of Credit issued to or by Agent. it, the Agent in its individual capacity and not as an Agent shall have the same rights rights, powers and powers duties hereunder and under the Facility Documents any other agreement executed in connection herewith as any other Lender and may exercise or refrain from exercising the same as though it were not the Agent, and the Agent and its Affiliates affiliates may accept deposits from, lend money to, invest in to and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party the Borrower or other affiliate thereof as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or thereinAgent.

Agent. (a) Each Lender Purchaser hereby designates and appoints Leonite Capital as its agent under this Agreement and the other Transaction Documents and each Purchaser hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by authorizes the Required Lenders), as Agent hereunder and under the other Facility Documents and authorizes Agent to (i) execute and deliver each of the Facility other Transaction Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to take such other action on its behalf under the provisions of this Agreement and each other Transaction Document and to exercise all rights, such powers and remedies and perform the such duties as are expressly delegated to the Agent under by the Facility Documents and (iii) exercise terms of this Agreement or any other Transaction Document, together with such powers as are reasonably incidental thereto. Notwithstanding any The Agent agrees to act as agent for and on behalf of the Purchasers on the conditions contained in this Section 9. Any provision to the contrary contained elsewhere in this Agreement or in any other Facility DocumentTransaction Document notwithstanding, the Agent shall not have any duty duties or responsibility responsibilities, except those expressly set forth herein; herein or in the other Transaction Documents, nor shall the Agent have or be deemed to have any fiduciary relationship with any Lender or participantPurchaser, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Transaction Document or otherwise exist against the Agent. Without limiting the generality of the foregoing sentenceforegoing, the use of the term “agent” herein and in this Agreement or the other Facility Transaction Documents with reference to the Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Lawapplicable law. Instead, such term is used merely as a matter of market custom, custom and is intended to create or reflect only an administrative a representative relationship between independent contracting parties. Each Secured Party Purchaser hereby further consents authorizes the Agent to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time act as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none secured party under each of the Borrowers or Transaction Documents that create a Lien on any item of Collateral. Except as expressly otherwise provided in this Agreement, the other Loan Parties Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights as a third party beneficiary of or taking or refraining from taking any of actions that the provisions in this Section 9.13. In performing its functions and duties Agent expressly is entitled to take or assert under or pursuant to this Agreement and the other Facility Transaction Documents. Without limiting the generality of the foregoing, Agent shall act solely as agent or of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any provision of its duties hereunder, the Transaction Documents that provides rights or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 powers to the extent provided by Agent. , Purchasers agree that the Agent shall have the same right to exercise the following powers as long as this Agreement remains in effect: (a) maintain, in accordance with its customary business practices, ledgers and records reflecting the status of the Obligations, the Collateral, the collections of the Obligors and their Subsidiaries, and related matters, (b) execute or file any and all financing or similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect to the Transaction Documents, (c) exclusively receive, apply, and distribute the collections of the Obligors and their Subsidiaries as provided in the Transaction Documents, (d) open and maintain such bank accounts and cash management arrangements as the Agent deems necessary and appropriate in accordance with the Transaction Documents for the foregoing purposes with respect to the Collateral and the collections of the Obligors and their Subsidiaries, (e) perform, exercise, and enforce any and all other rights and powers under remedies of the Facility Documents as Purchasers with respect to the Obligors, Guarantors, the Obligations, the Collateral, the collections of the Obligors and their Subsidiaries, or otherwise related to any other Lender and may exercise or refrain from exercising the of same as though it were not Agentprovided in the Transaction Documents, and (f) incur and pay such expenses and other amounts as the Agent may deem necessary or appropriate for the performance and fulfillment of its Affiliates may lend money to, invest in functions and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or powers pursuant to the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or thereinTransaction Documents.

Agent. In addition, the Company agrees, and agrees to cause its Restricted Subsidiaries, to continue to provide the Communications to the Administrative Agent or the Lenders, as the case may be, in the manner specified in the Loan Documents but only to the extent requested by the Administrative Agent. The Company hereby acknowledges that (a) Each the Administrative Agent will make available to the applicable Lenders and each Issuing Lender hereby irrevocably appoints Deerfield Partnersmaterials and/or information provided by or on behalf of the Company hereunder (collectively, L.P. the “Company Materials”) by posting the Company Materials on Intralinks or another similar electronic system (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), as Agent hereunder and under the other Facility Documents and authorizes Agent to (i“Platform”) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under the Facility Documents and (iiib) exercise such powers as are reasonably incidental thereto. Notwithstanding any provision certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the contrary contained elsewhere in this Agreement Company or in any other Facility Documentits securities) (each, Agent a “Public Lender”). The Company hereby agrees that (w) all Company Materials that are to be made available to Public Lenders shall not have any duty or responsibility except those expressly set forth hereinbe clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; nor (x) by marking Company Materials “PUBLIC,” the Company shall Agent have or be deemed to have authorized the Administrative Agent and the Lenders to treat such Company Materials as not containing any fiduciary relationship material non-public information with respect to the Company or its securities for purposes of United States federal and state securities laws (provided, however, that for the avoidance of doubt, to the extent such Company Materials constitute Information, they shall be subject to the provisions of Section 10.15); (y) all Company Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor;” and (z) the Administrative Agent shall be entitled to treat any Company Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Company Materials shall be marked “PUBLIC”, unless the Company notifies the Administrative Agent promptly that any such document contains material non-public information: (1) the Loan Documents, (2) financial statements and Compliance Certificates provided to the Administrative Agent pursuant to the Loan Documents and (3) notification of effective changes in the terms of the Facilities. Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or participantits delegate, in accordance with such Public Lender’s compliance procedures and no implied covenantsapplicable law, functionsincluding United States Federal and state securities laws, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting to make reference to Communications that are not made available through the generality “Public Side Information” portion of the foregoing sentencePlatform and that may contain material non-public information with respect to the Company or its securities for purposes of United States Federal or state securities laws. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY LOAN PARTY, ANY LENDER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) Exhibit 10.2 ARISING OUT OF ANY LOAN PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. The Administrative Agent agrees that the use receipt of the term “agent” herein and in other Facility Documents with reference Communications by it at its e-mail address set forth above shall constitute effective delivery of the Communications to Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine it for purposes 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 partiesthe Loan Documents. Each Secured Party further consents Lender agrees that receipt of notice to and authorizes Agent’s execution and it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of any additional intercreditor or subordination agreements the Communications to such Lender for purposes of the Loan Documents. Each Lender agrees to notify the Administrative Agent in writing (including by electronic communication) from time to time as contemplated by the terms hereof on behalf of such Secured Party Lender’s e-mail address to which the foregoing notice may be sent by electronic transmission and agrees that the foregoing notice may be sent to be bound by such e-mail address. Nothing herein shall prejudice the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none right of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Administrative Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any Lender to give any notice or other communication pursuant to any Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as Document in any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest manner specified in and generally engage in any kind of business with each such Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or thereinDocument.

Agent. (a) Each Lender of the Lenders and the Issuing Bank hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor the Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), as Agent hereunder and under the other Facility Documents its agent and authorizes the Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions on its behalf and to exercise all rights, such powers and remedies and perform the duties as are expressly delegated to Agent under it by the Facility Documents terms of the Loan Documents, together with such actions and (iii) exercise such powers as are reasonably incidental thereto. Notwithstanding any provision to The bank serving as the contrary contained elsewhere in this Agreement or in any other Facility Document, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Documents with reference to 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under this Agreement and the other Facility Documents, Agent shall act solely as agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent hereunder shall have the same rights and powers under the Facility Documents in its capacity as a Lender as any other Lender and may exercise or refrain from exercising the same as though it were not the Agent, and Agent such bank and its Affiliates may accept deposits from, lend money to, invest in to and generally engage in any kind of business with each Loan Party, the Borrower or any Subsidiary or other Affiliate of any Loan Party thereof as if it were not the Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement any duties or obligations except those expressly set forth in the other Facility Documents a fiduciary relationship in respect of any LenderLoan Documents. Nothing in this Agreement or any Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other Facility implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is intended required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be construed to impose upon Agent any obligations necessary under the circumstances as provided in respect of this Agreement or any of the other Facility Documents Section 10.02), and (c) except as expressly set forth in the Loan Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any Subsidiaries that is communicated to or obtained by the bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or willful misconduct. The Agent shall not be deemed to have knowledge of any Default unless and until written notice thereof is given to the Agent by the Borrower or a Lender, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Agent. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Agent. Subject to the appointment and acceptance of a successor as provided in this paragraph, the Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Agent. Upon the acceptance of its appointment as the Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Agent's resignation hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or therein.omitted to be taken by any of them while it was acting as the Agent. Each Lender acknowledges that it has, independently and without reliance upon the Agent, any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agent, any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. Mercantile Bank, N.A., Bank of America, N.A., The Bank of Nova Scotia, Bank One, NA, Wachovia Bank, N.A., SunTrust Bank, Nashville, N.A. and ABN AMRO Bank, N.V., have been designated as "co-administrative agent," "syndication

Agent. (a) Each Lender In order to expedite the transactions contemplated by this Agreement, Foothill Capital Corporation is hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), to act as Agent hereunder on behalf of the Lenders. Each of the Lenders and under each subsequent holder of any Note by its acceptance thereof, irrevocably authorizes the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions action on its behalf and to exercise all rights, such powers hereunder and remedies under the Security Documents and perform the duties other Loan Documents as are expressly specifically delegated to or required of the Agent under by the Facility Documents terms hereof and (iii) exercise the terms thereof together with such actions and powers as are reasonably incidental thereto. Notwithstanding Neither the Agent nor any provision of its directors, officers, employees or agents shall be liable as such for any action taken or omitted to be taken by it or them hereunder or under any of the Security Documents and other Loan Documents or in connection herewith or therewith (a) at the request or with the approval of the Required Lenders (or, if otherwise specifically required hereunder or thereunder, the consent of all the Lenders) or (b) in the absence of its or their own gross negligence or willful misconduct. For its services as Agent, the Borrower has agreed to pay Foothill Capital Corporation the administration fee set forth in Section 2.6. The Agent is hereby expressly authorized on behalf of the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of each of the Lenders any payment of principal of or interest on the Notes outstanding hereunder and all other amounts accrued hereunder which are paid to the contrary contained elsewhere Agent, and promptly to distribute to each Lender its proper share of all payments so received, (b) to distribute to each Lender copies of all notices, agreements and other material as provided for in this Agreement or in any the Security Documents and other Facility Document, Agent shall not have any duty or responsibility except those expressly set forth herein; nor shall Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Facility Document or otherwise exist against Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Facility Loan Documents with reference to Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead, as received by 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. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated by the terms hereof on behalf of such Secured Party and agrees to be bound by the terms and provisions thereof, including any purchase option contained therein. The provisions of this Section 9.13 are solely for the benefit of Agent and the Lenders and none of the Borrowers or the other Loan Parties shall have any rights as a third party beneficiary of any of the provisions in this Section 9.13. In performing its functions and duties under (c) to take all actions with respect to this Agreement and the Security Documents and other Facility DocumentsLoan Documents as are specifically delegated to the Agent. In the event that (a) the Borrower fails to pay when due the principal of or interest on any Note, any amount payable with respect to any Letter of Credit Obligation, or any fee payable hereunder or (b) the Agent receives written notice of the occurrence of a Default or an Event of Default (the Agent being deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Agent by any Borrower or a Lender), the Agent within a reasonable time shall give written notice thereof to the Lenders, and shall take such action with respect to such Event of Default or other condition or event as it shall be directed to take by the Required Lenders; provided, however, that, unless and until the Agent shall act solely have received such directions, the Agent may take such action or refrain from taking such action hereunder or under the Security Documents or other Loan Documents with respect to a Default or Event of Default as agent it shall deem advisable in the best interests of Lenders and does not assume and the Lenders. The Agent shall not be deemed responsible in any manner to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunderthe Lenders for the effectiveness, enforceability, perfection, value, genuineness, validity or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. Agent shall have the same rights and powers under the Facility Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Agent, and Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason due execution of this Agreement or Agreement, the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement Notes or any of the other Facility Loan Documents is intended or Collateral or any other agreements or certificates, requests, financial statements, notices or opinions of counsel or for any recitals, statements, warranties or representations contained herein or in any such instrument or be under any obligation to ascertain or shall be construed inquire as to impose upon Agent the performance or observance of any of the terms, provisions, covenants, conditions, agreements or obligations in respect of this Agreement or any of the other Facility Loan Documents except or any other agreements on the part of the Borrower and, without limiting the generality of the foregoing, the Agent shall, in the absence of knowledge to the contrary, be entitled to accept any certificate furnished pursuant to this Agreement or any of the other Loan Documents as expressly set forth herein conclusive evidence of the facts stated therein and shall be entitled to rely on any note, notice, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or thereinother document which it believes in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. It is understood and agreed that the Agent may exercise its rights and powers under other agreements and instruments to which it is or may be a party, and engage in other transactions with the Borrower, as though it were not Agent of the Lenders hereunder. The Agent shall promptly give notice to the Lenders of the receipt or sending of any notice, schedule, report, projection, financial statement or other document or information pursuant to this Agreement or any of the other Loan Documents and shall promptly forward a copy thereof to each Lender. Neither the Agent nor any of its directors, officers, employees or agents shall have any responsibility to the Borrower on account of the failure or delay in performance or breach by any Lender other than the Agent of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Borrower of any of their respective obligations hereunder or in connection herewith. The Agent may consult with legal counsel selected by it in connection with matters arising under this Agreement or any of the other Loan Documents and any action taken or suffered in good faith by it in accordance with the opinion of such counsel shall be full justification and protection to it. The Agent may exercise any of its powers and rights and perform any duty under this Agreement or any of the other Loan Documents through agents or attorneys.

Agent. (a) Each Lender In order to expedite the transactions contemplated by this Agreement, Chemical Bank is hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), to act as Agent hereunder on behalf of the Lenders. Each of the Lenders and under each subsequent holder of any Note or issuer of any Letter of Credit or acceptor of any Acceptance Draft by its acceptance thereof, irrevocably authorizes the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions action on its behalf and to exercise all rights, such powers hereunder and remedies and perform under the duties Loan Documents as are expressly specifically delegated to or required of the Agent under by the Facility Documents terms hereof and (iii) exercise the terms thereof together with such powers as are reasonably incidental thereto. Notwithstanding Neither the Agent nor any provision of its directors, officers, employees or agents shall be liable as such for any action taken or omitted to be taken by it or them hereunder or under any of the Loan Documents or in connection herewith or therewith (a) at the request or with the approval of the Required Lenders (or, if otherwise specifically required hereunder or thereunder, the consent of all the Lenders) or (b) in the absence of its or their own gross negligence or willful misconduct. The Agent is hereby expressly authorized on behalf of the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of each of the Lenders any payment of principal of or interest on the Notes outstanding hereunder and all other amounts accrued hereunder paid to the contrary contained elsewhere Agent, and promptly to distribute to each Lender its proper share of all payments so received, (b) to distribute to each Lender copies of all notices, agreements and other material as provided for in this Agreement or in the other Loan Documents as received by such Agent and (c) to take all actions with respect to this Agreement and the other Loan Documents as are specifically delegated to the Agent. In the event that (a) the Borrower fails to pay when due the principal of or interest on any Note, any amount payable under any Letter of Credit or Acceptance Draft, or any fee payable hereunder or (b) the Agent receives written notice of the occurrence of a Default or an Event of Default, the Agent within a reasonable time shall give written notice thereof to the Lenders, and shall take such action with respect to such Event of Default or other condition or event as it shall be directed to take by the Required Lenders; provided, however, that, unless and until the -------- ------- Agent shall have received such directions, the Agent may take such action or refrain from taking such action hereunder or under any other Facility Document, Loan Documents with respect to a Default or Event of Default as it shall deem advisable in the best interests of the Lenders. The Agent shall not have be responsible in any duty manner to any of the Lenders for the effectiveness, enforceability, perfection, value, genui- neness, validity or responsibility except those expressly set forth herein; nor shall Agent have due execution of this Agreement, the Notes or any of the other Loan Documents or any other agreements or certificates, requests, financial statements, notices or opinions of counsel or for any recitals, statements, warranties or representations contained herein or in any such instrument or be deemed under any obligation to have ascertain or inquire as to the performance or observance of any fiduciary relationship with any Lender or participantof the terms, and no implied provisions, covenants, functionsconditions, responsibilities, duties, agreements or obligations or liabilities shall be read into of this Agreement or any of the other Facility Document Loan Documents or otherwise exist against Agent. Without any other agreements on the part of the Borrower and, without limiting the generality of the foregoing sentenceforegoing, the use Agent shall, in the absence of knowledge to the contrary, be entitled to accept in good faith any certificate furnished pursuant to this Agreement or any of the term “agent” herein other Loan Documents as conclusive evidence of the facts stated therein and shall be entitled to rely in good faith on any note, notice, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document which it believes in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. It is understood and agreed that the Agent may exercise its rights and powers under other agreements and instruments to which it is or may be a party, and engage in other Facility Documents transactions with reference the Borrower, as though it were not Agent of the Lenders hereunder. The Agent shall promptly give notice to Agent is not intended to connote the Lenders of the receipt or sending of any fiduciary notice, schedule, report, projection, financial statement or other implied (document or express) information pursuant to this Agreement or any of the other Loan Documents and shall promptly forward a copy thereof to each Lender. Neither the Agent nor any of its directors, officers, employees or agents shall have any responsibility to the Borrower on account of the failure or delay in performance or breach by any Lender other than the Agent of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Borrower of any of their respective obligations hereunder or in connection herewith. The Agent may consult with legal counsel selected by it in connection with matters arising under agency doctrine this Agreement or any of the other Loan Documents and any Applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create action taken or reflect only an administrative relationship between independent contracting parties. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated suffered in good faith by it in accordance with the terms hereof on behalf opinion of such Secured Party counsel shall be full justification and agrees protection to be bound by the terms and provisions thereof, including any purchase option contained thereinit. The provisions Agent may exercise any of its powers and rights and perform any duty under this Section 9.13 are solely for Agreement or any of the benefit of other Loan Documents through agents or attorneys. The Agent and the Lenders Borrower may deem and none treat the payee or most recent assignee pursuant to Section 11.03(e) hereof, as applicable, of any Note as the Borrowers or the other Loan Parties holder thereof until written notice of transfer shall have any rights been delivered as a third party beneficiary of any of provided in Section 11.03(e) hereof by such payee to the provisions in this Section 9.13. In performing its functions and duties under this Agreement Agent and the other Facility DocumentsBorrower. With respect to the Loans made hereunder, Agent shall act solely as agent of Lenders the Notes issued to it and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Credit Event applicable to it, the Agent may perform any of in its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees individual capacity and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. not as an Agent shall have the same rights rights, powers and powers duties hereunder and under the Facility Documents any other Agreement executed in connection herewith as any other Lender and may exercise or refrain from exercising the same as though it were not the Agent, and the Agent and its Affiliates affiliates may accept deposits from, lend money to, invest in to and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party the Borrower or other affiliate thereof as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or thereinAgent.

Agent. (a) Each Lender In order to expedite the transactions contemplated by this Agreement, The Chase Manhattan Bank is hereby irrevocably appoints Deerfield Partners, L.P. (together with any successor Agent appointed by Deerfield Partners, L.P. or any successor Agent that was appointed by the Required Lenders), to act as Agent hereunder on behalf of the Lenders. Each of the Lenders and under each subsequent holder of any Note or issuer of any Letter of Credit by its acceptance thereof, irrevocably authorizes the other Facility Documents and authorizes Agent to (i) execute and deliver the Facility Documents to which it is a party and accept delivery thereof on its behalf from any Loan Party, (ii) take such other actions action on its behalf and to exercise all rights, such powers hereunder and remedies under the Security Documents and perform the duties other Loan Documents as are expressly specifically delegated to or required of the Agent under by the Facility Documents terms hereof and (iii) exercise the terms thereof together with such powers as are reasonably incidental thereto. Notwithstanding Neither the Agent nor any provision of its directors, officers, employees or agents shall be liable as such for any action taken or omitted to be taken by it or them hereunder or under any of the Security Documents and other Loan Documents or in connection herewith or therewith (a) at the request or with the approval of the Required Lenders (or, if otherwise specifically required hereunder or thereunder, the consent of all the Lenders) or (b) in the absence of its or their own gross negligence or willful misconduct. The Agent is hereby expressly authorized on behalf of the Lenders, without hereby limiting any implied authority, (a) to receive on behalf of each of the Lenders any payment of principal of or interest on the Notes outstanding hereunder and all other amounts accrued hereunder paid to the contrary contained elsewhere Agent, and promptly to distribute to each Lender its proper share of all payments so received, (b) to distribute to each Lender copies of all notices, agreements and other material as provided for in this Agreement or in the Security Documents and other Loan Documents as received by such Agent and (c) to take all actions with respect to this Agreement and the Security Documents and other Loan Documents as are specifically delegated to the Agent. In the event that (a) any Borrower fails to pay when due the principal of or interest on any Note, any amount payable under any Letter of Credit, or any fee payable hereunder or (b) the Agent receives written notice of the occurrence of a Default or an Event of Default, the Agent within a reasonable time shall give written notice thereof to the Lenders, and shall take such action with respect to such Event of Default or other Facility Documentcondition or event as it shall be directed to take by the Required Lenders; provided, however, that, unless and until the Agent shall -------- ------- have received such directions, the Agent may take such action or refrain from taking such action hereunder or under the Security Documents or other Loan Documents with respect to a Default or Event of Default as it shall deem advisable in the best interests of the Lenders. The Agent shall not have be responsible in any duty manner to any of the Lenders for the effectiveness, enforceability, perfection, value, genuineness, validity or responsibility except those expressly set forth herein; nor shall Agent have due execution of this Agreement, the Notes or any of the other Loan Documents or Collateral or any other agreements or certificates, requests, financial statements, notices or opinions of counsel or for any recitals, statements, warranties or representations contained herein or in any such instrument or be deemed under any obligation to have ascertain or inquire as to the performance or observance of any fiduciary relationship with any Lender or participantof the terms, and no implied provisions, covenants, functionsconditions, responsibilities, duties, agreements or obligations or liabilities shall be read into of this Agreement or any of the other Facility Document Loan Documents or otherwise exist against Agent. Without any other agreements on the part of the Borrowers and, without limiting the generality of the foregoing sentenceforegoing, the use Agent shall, in the absence of knowledge to the contrary, be entitled to accept any certificate furnished pursuant to this Agreement or any of the term “agent” herein other Loan Documents as conclusive evidence of the facts stated therein and shall be entitled to rely on any note, notice, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document which it believes in good faith to be genuine and correct and to have been signed or sent by the proper person or persons. It is understood and agreed that the Agent may exercise its rights and powers under other agreements and instruments to which it is or may be a party, and engage in other Facility Documents transactions with reference the Borrowers, as though it were not Agent of the Lenders hereunder. The Agent shall promptly give notice to Agent is not intended to connote the Lenders of the receipt or sending of any fiduciary notice, schedule, report, projection, financial statement or other implied (document or express) information pursuant to this Agreement or any of the other Loan Documents and shall promptly forward a copy thereof to each Lender. Neither the Agent nor any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure or delay in performance or breach by any Lender other than the Agent of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Borrowers of any of their respective obligations hereunder or in connection herewith. The Agent may consult with legal counsel selected by it in connection with matters arising under agency doctrine this Agreement or any of the other Loan Documents and any Applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create action taken or reflect only an administrative relationship between independent contracting parties. Each Secured Party further consents to and authorizes Agent’s execution and delivery of any additional intercreditor or subordination agreements from time to time as contemplated suffered in good faith by it in accordance with the terms hereof on behalf opinion of such Secured Party counsel shall be full justification and agrees protection to be bound by the terms and provisions thereof, including any purchase option contained thereinit. The provisions Agent may exercise any of its powers and rights and perform any duty under this Section 9.13 are solely for Agreement or any of the benefit of other Loan Documents through agents or attorneys. The Agent and the Lenders Borrowers may deem and none treat the payee of any Note as the Borrowers or the other Loan Parties holder thereof until written notice of transfer shall have any rights been delivered as a third party beneficiary of any of provided herein by such payee to the provisions in this Section 9.13. In performing its functions and duties under this Agreement Agent and the other Facility DocumentsBorrowers. With respect to the Loans made hereunder, Agent shall act solely as agent of Lenders the Notes issued to it and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Credit Event applicable to it, the Agent may perform any of in its duties hereunder, or under the Facility Documents, by or through its agents, subagents, servicers, trustees, investment managers or employees individual capacity and any such Person shall benefit from this Section 9.13 to the extent provided by Agent. not as an Agent shall have the same rights rights, powers and powers duties hereunder and under the Facility Documents any other agreement executed in connection herewith as any other Lender and may exercise or refrain from exercising the same as though it were not the Agent, and the Agent and its Affiliates affiliates may accept deposits from, lend money to, invest in to and generally engage in any kind of business with each Loan Party, Affiliate of any Loan Party the Borrowers or other affiliate thereof as if it were not Agent hereunder. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement or the other Facility Documents a fiduciary relationship in respect of any Lender. Nothing in this Agreement or any of the other Facility Documents is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the other Facility Documents except as expressly set forth herein or thereinAgent.