Common use of Certain Rights of the Agent Clause in Contracts

Certain Rights of the Agent. The Agent shall have the right to take any action with respect to the Collateral, on behalf of all of the Secured Parties. Whenever reference is made in this Agreement to any action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Agent to any amendment, waiver or other modification of this Agreement to be executed (or not to be executed) by the Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Agent, it is understood that in all cases the Agent shall be fully justified in failing or refusing to take any such action under this Agreement as it deems appropriate. This provision is intended solely for the benefit of the Agent and its successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim under or in relation to any Transaction Document, or confer any rights or benefits on any party hereto. If such instructions are not provided despite the Agent’s request therefor, the Agent shall be entitled to refrain from such act or taking such action, and if such action is taken, shall be entitled to appropriate indemnification from the Secured Parties in respect of actions to be taken by the Agent; and the Agent shall not incur liability to any person or entity by reason of so refraining. Without limiting the foregoing, (a) no Secured Party shall have any right of action whatsoever against the Agent as a result of the Agent acting or refraining from acting hereunder in accordance with the terms of the Agreement or any other related agreement, and the Company shall have no right to question or challenge the authority of, or the instructions given to, the Agent pursuant to the foregoing and (b) the Agent shall not be required to take any action which the Agent believes (i) could reasonably be expected to expose it to personal liability, or (ii) require it to expend or risk its own funds, or (iii) is contrary to this Agreement, the Notes, any other related agreement or applicable law.

Certain Rights of the Agent. The Agent shall have the right to take any action with respect to the Collateral, on behalf of all of the Secured PartiesParties upon the written direction of a Super Majority in Interest. Whenever reference is made in this Agreement to any action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Agent to any amendment, waiver or other modification of this Agreement to be executed (or not to be executed) by the Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Agent, it is understood that in all cases the Agent shall be fully justified in failing or refusing to take any such action under this Agreement as it deems appropriate, if it shall not have received such advice or concurrence of a Super Majority in Interest. This provision is intended solely for the benefit of the Agent and its successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim under or in relation to any Transaction Documentdocument, or confer any rights or benefits on any party hereto. If such instructions are not provided despite the Agent’s request therefor, the Agent shall be entitled to refrain from such act or taking such action, and if such action is taken, shall be entitled to appropriate indemnification from the Secured Parties in respect of actions to be taken by the Agent; and the Agent shall not incur liability to any person or entity by reason of so refraining. Without limiting the foregoing, (a) no Secured Party shall have any right of action whatsoever against the Agent as a result of the Agent acting or refraining from acting hereunder in accordance with the terms of the Agreement or any other related agreementTransaction Document, and the Company shall have no right to question or challenge the authority of, or the instructions given to, the Agent pursuant to the foregoing and (b) the Agent shall not be required to take any action which the Agent believes (i) could reasonably be expected to expose it to personal liability, or (ii) require it to expend or risk its own funds, or (iii) is contrary to this Agreement, the Notes, any other related agreement Transaction Documents or applicable law.

Certain Rights of the Agent. The Agent shall have the right to take any action with respect to the Collateral, on behalf of all of the Secured Parties. Whenever reference is made in this Agreement to any action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Agent to any amendment, waiver or other modification of this Agreement to be executed (or not to be executed) by the Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Agent, it is understood that in all cases the Agent shall be fully justified in failing or refusing to take any such action under this Agreement as it deems appropriate. This provision is intended solely for the benefit of the Agent and its successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim under or in relation to any Transaction Document, or confer any rights or benefits on any party hereto. If such instructions are not provided despite the Agent’s request therefor, the Agent shall be entitled to refrain from such act or taking such action, and if such action is taken, shall be entitled to appropriate indemnification from the Secured Parties in respect of actions to be taken by the Agent; and the Agent shall not incur liability to any person or entity by reason of so refraining. Without limiting the foregoing, (a) no Secured Party shall have any right of action whatsoever against the Agent as a result of the Agent acting or refraining from acting hereunder in accordance with the terms of the Agreement or any other related agreement, and the Company shall have no right to question or challenge the authority of, or the instructions given to, the Agent pursuant to the foregoing and (b) the Agent shall not be required to take any action which the Agent believes (i) could reasonably be expected to expose it to personal liability, or (ii) require it to expend or risk its own funds, or (iii) is contrary to this Agreement, the Debentures, the Professional Notes, any other related agreement or applicable law.

Certain Rights of the Agent. (a) The Agent undertakes to perform such duties and only such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Agent. (b) The Agent shall have be authorized and protected and shall incur no liability or responsibility to the right Company or to take any Holder for any action with respect taken, suffered or omitted to the Collateralbe taken by it in reliance on any written notice, on behalf of all of the Secured Parties. Whenever reference is made in this Agreement to any action byresolution, waiver, consent, designationorder, specification, requirement or approval of, notice, request certificate or other communication frompaper, document or other direction given or action instrument believed by it in the absence of bad faith to be undertaken genuine and to have been signed, sent or to be (or not to be) suffered or omitted presented by the proper party or parties. The Agent shall not be deemed to have knowledge of any amendmentevent of which it was supposed to receive notice thereof hereunder, waiver or other modification of this Agreement to be executed (or not to be executed) by the Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Agent, it is understood that in all cases and the Agent shall be fully justified in protected and shall incur no liability for failing or refusing to take action in connection therewith unless and until it has received such notice in writing. (c) The Agent may engage and consult with counsel, investment banking advisors, accountants or other professionals of its reasonable selection, and the advice or opinion of such outside counsel, investment banking advisors, accountants or other professionals shall be full and complete authorization and protection to the Agent, and the Agent shall be held harmless by the Company in respect of any action taken, suffered or omitted by it hereunder in the absence of bad faith and in reliance thereon. (d) Any permissive rights of the Agent hereunder shall not be construed as a duty. (e) The Agent shall not be required to give any note or surety in respect of the execution of such powers or otherwise in respect of such powers. (f) The Company agrees to indemnify the Agent for, and to hold the Agent harmless from and against, any loss, liability, damage, claim, judgment, fine, cost, penalty, demands, suits or expense (“Loss”) (whether asserted by the Company, any Holder or any third party) suffered or incurred by the Agent arising out of or in connection with the Agent’s performance of its obligations under this Agreement, including, without limitation, the reasonable costs and expenses of defending the Agent against any claim, charge, demand, action, suit or loss arising out of or in connection with the execution, acceptance, administration, exercise and performance of its duties under this Agreement, including the costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or enforcing its rights hereunder, except to the extent such Loss has been determined by a final non-appealable decision of a court of competent jurisdiction to have resulted from the Agent’s gross negligence, bad faith, willful misconduct or fraud. The Company’s obligations under this Section 2.2(f) to indemnify the Agent shall survive the expiration of the CVRs and the termination of this Agreement and the resignation, replacement or removal of the Agent. (g) In addition to the indemnification provided under Section 2.2(f), but without duplication, the Company agrees to (i) pay the fees of the Agent in connection with the Agent’s performance of its obligations hereunder, as agreed upon in writing by the Agent and the Company on or prior to the date of this Agreement (the “Fee Schedule”), and (ii) without limiting the foregoing (i), reimburse the Agent for all reasonable and documented out-of-pocket expenses, including all Taxes thereon (other than income, receipt, franchise or similar Taxes) and charges of any Governmental Authority, incurred by the Agent in the preparation, delivery, negotiation, amendment, administration and execution of this Agreement and the exercise and performance of its duties hereunder, including any stamp and transfer Taxes. The Company’s obligations under this Section 2.2(g) to compensate the Agent shall survive the expiration of the CVRs and the termination of this Agreement and the resignation, replacement or removal of the Agent. (h) None of the provisions of this Agreement shall require the Agent to expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it. (i) Anything in this Agreement to the contrary notwithstanding, in no event shall the Agent be liable for special, indirect, punitive, incidental or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. (j) Whenever the Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Agent may rely upon an Officer’s Certificate, which certificate shall be full authorization and protection to the Agent, and the Agent shall, in the absence of bad faith on its part, incur no liability and be held harmless by the Company for or in respect of any action taken, suffered or omitted to be taken by it under the provisions of this Agreement in reliance upon such certificate. (k) The Agent shall have no liability and shall be held harmless by the Company in respect of the validity of this Agreement or the execution and delivery hereof (except the due execution and delivery hereof by the Agent and the enforceability of this Agreement against the Agent assuming the due execution and delivery hereof by the Company), nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Agreement. (l) The Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, accountants, agents or other experts, and the Agent will not be liable for any act, default, neglect or misconduct of any such attorneys or agents or for any loss to the Company or the Holders resulting from any such act, default, neglect or misconduct, absent gross negligence, bad faith or willful misconduct in the selection and continued employment thereof (each as determined by a final non-appealable order, judgment, ruling or decree of a court of competent jurisdiction). (m) The Agent shall not be liable for or by reason of, and shall be held harmless by the Company with respect to any of the statements of fact or recitals contained in this Agreement or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only. (n) The Agent shall not incur any liability for not performing any act, duty, obligation or responsibility by reason of any occurrence beyond the control of the Agent (including without limitation any act or provision of any present or future law or regulation or governmental authority, any act of God, war, civil disorder or failure of any means of communication, terrorist acts, pandemics, epidemics, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties). (o) In no event shall the Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, epidemic, pandemic, disease, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, or other causes, in each case, reasonably beyond its control; it being understood that the Agent shall use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances. (p) In the event the Agent reasonably believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Agent hereunder, or is for any reasonably justifiable reason unsure as to what action to take hereunder, the Agent shall notify the Company in writing as soon as practicable, and upon delivery of such notice may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company or any Holder or other Person for refraining from taking such action, unless the Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the reasonable satisfaction of the Agent. (q) The Agent and the Company agree that all books, records, information and data pertaining to the business of the other party, including inter alia, personal, non-public Holder information, which are exchanged or received pursuant to the negotiation or the carrying out of this Agreement including the fees for services set forth in the Fee Schedule shall remain confidential, and shall not be voluntarily disclosed to any other person, except as may be required by law, including, without limitation, pursuant to subpoenas from state or federal government authorities (e.g., in divorce and criminal actions). (r) The Agent shall act hereunder solely as agent for the Company and shall not assume any obligations or relationship of agency or trust with any of the owners or holders of the CVRs. For the avoidance of doubt, the Agent shall not have any duty or responsibility in the case of the receipt of any written demand from any Holders with respect to any action or default by the Company, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company. (s) Subject to applicable Law, (i) the Agent and any shareholder, Affiliate, director, officer or employee of the Agent may buy, sell or deal in any securities of the Company or become peculiarly interested in any transaction in which such parties may be interested, or contract with or lend money to such parties or otherwise act as fully and freely as though it were not the Agent under this Agreement, and (ii) nothing herein will preclude the Agent from acting in any other capacity for the Company or for any other Person. (t) Computershare shall hold all funds received under this Agreement as it deems appropriate. This provision is intended solely for the benefit of the Agent and its successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim under or in relation to any Transaction Document, or confer any rights or benefits on any party hereto. If such instructions are not provided despite the Agent’s request therefor, the Agent shall be entitled to refrain from such act or taking such action, and if such action is taken, shall be entitled to appropriate indemnification from the Secured Parties in respect of actions to be taken by the Agent; and the Agent shall not incur liability to any person or entity by reason of so refraining. Without limiting the foregoing, (a) no Secured Party shall have any right of action whatsoever against the Agent as a result of the Agent acting or refraining from acting hereunder in accordance with the terms of this Agreement in a bank account at a U.S. chartered commercial bank with consolidated assets of $100 billion or more selected by Computershare and as approved by the Agreement or any other related agreement, Company and the listed in Annex D attached hereto. The Company shall have no right responsibility or liability for any diminution of such funds that may result from any deposit made by Computershare in accordance with this paragraph, except for any loss of such funds as a result of a default by the bank where such funds are held. Computershare may from time to question or challenge the authority of, or the instructions given to, the Agent pursuant to the foregoing time receive interest and (b) the other earnings in connection with such deposits. The Agent shall not be required obligated to take any action which pay such interest or earnings to the Agent believes (i) could reasonably be expected to expose it to personal liability, or (ii) require it to expend or risk its own funds, or (iii) is contrary to this Agreement, the NotesCompany, any Holder or any other related agreement or applicable lawparty.

Certain Rights of the Agent. The Agent shall have the right to take any action with respect to the Collateral, on behalf of itself and all of the Secured Parties. Whenever reference is made in this Agreement to any action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Agent to any amendment, waiver or other modification of this Agreement to be executed (or not to be executed) by the Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Agent, it is understood that in all cases the Agent shall be fully justified in failing or refusing to take any such action under this Agreement as it deems appropriate. This provision is intended solely for the benefit of the Agent and its successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim under or in relation to any Transaction Document, or confer any rights or benefits on any party hereto. The Agent shall be entitled to refrain from any act or the taking of any action (including the failure to take an action) in connection herewith or from the exercise of any power, discretion or authority vested in it hereunder or thereunder unless and until the Agent shall have received written instructions in respect thereof from the Required Holders (or such greater number of Holders as may be expressly required herein) and, upon receipt of such instructions from the Required Holders (or such greater number of Holders as may be expressly required herein), the Agent shall be entitled to act or (where so instructed) refrain from action, or to exercise such power, discretion or authority, in accordance with such instructions. The Agent may at any time solicit written confirmatory instructions from the Required Holders (or such greater number of Holders as may be expressly required herein) or request an order of a court of competent jurisdiction as to any action that it may be requested or required to take, or that it may propose to take, in the performance of any of its obligations under this Agreement. If such instructions or order are not provided despite the Agent’s request therefor, the Agent shall be entitled to refrain from such act or taking such actionaction and may suspend performance of such obligations as it determines to be appropriate until it receives such instructions or order, and if such action is taken, shall be entitled to appropriate indemnification from the Secured Parties in respect of actions to be taken by the Agent; and the Agent shall not incur liability to any person or entity by reason of so refraining. Without limiting the foregoing, (a) no Secured Party shall have any right of action whatsoever against the Agent as a result of the Agent acting or refraining from acting hereunder in accordance with the terms of the Agreement or any other related agreement, and the Company shall have no right to question or challenge the authority of, or the instructions given to, the Agent pursuant to the foregoing except in the case of the gross negligence or willful misconduct of the Agent as determined by a final judgment (not subject to further appeal) of a court of competent jurisdiction and (b) the Agent shall not be required to take any action which the Agent believes (i) could reasonably be expected to expose it to personal liability, or (ii) require it to expend or risk its own funds, or (iii) is contrary to this Agreement, the Notes, any other related agreement or applicable law.

Certain Rights of the Agent. The Agent shall have the right (but not the obligation) to take any action with respect to the Collateral, on behalf of all of the Secured Parties. Whenever reference is made in this Agreement The Agent shall request instructions from the Secured Parties with respect to any action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given act or action (including failure to be undertaken act) in connection with the Agreement or to be (or not to be) suffered or omitted by the Agent to any amendment, waiver or other modification of this Agreement to be executed (or not to be executed) by the Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Agent, it is understood that in all cases the Agent shall be fully justified in failing or refusing to take any such action under this Agreement as it deems appropriate. This provision is intended solely for the benefit of the Agent and its successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim under or in relation to any Transaction Document, and shall be entitled to act or confer any rights or benefits on any party heretorefrain from acting in accordance with the instructions of the Majority in Interest. If such instructions are not promptly provided despite the Agent’s request therefor, the Agent shall be entitled to act or refrain from such act or taking such actionacting, and if such action is taken, shall be entitled to appropriate indemnification from the Secured Parties in respect of actions to be taken by the Agent; and the Agent shall not incur liability to any person or entity by reason of so acting or so refraining, and shall be entitled to indemnification from the Secured Parties in respect of refraining from acting or actions taken or to be taken by or on behalf of the Agent. The Majority in Interest shall not direct the Agent to take action that would violate the provisions of this Agreement or any other Transaction Document. Without limiting the foregoing, (a) no Secured Party shall have any right of action whatsoever against the Agent as a result of the Agent acting or refraining from acting hereunder in accordance with the written instructions of the Majority in Interest, the terms of the Agreement or any other related agreementTransaction Document, and the Company Debtors shall have no right to question or challenge the authority of, or the instructions given to, the Agent pursuant to the foregoing and (b) the Agent shall not be required to take any action which the Agent believes (i) could reasonably be expected to expose it to personal liability, liability or (ii) require it to expend or risk its own funds, or (iii) is contrary to this Agreement, the Notes, any other related agreement Transaction Documents or applicable law. Notwithstanding anything herein to the contrary, with respect to any act or action (including failure to act) to be taken by the Agent in connection with the Agreement, any counsel to be used by the Agent in connection therewith shall be reasonably acceptable to a Majority in Interest.

Certain Rights of the Agent. The Agent shall have the right to take any action with respect to the Collateral, on behalf of all of the Secured Parties. Whenever reference is made in this Agreement The Agent shall request instructions from the Secured Parties with respect to any action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given material act or action (including failure to be undertaken act) in connection with the Agreement, the Secured Party DACA or to be (or not to be) suffered or omitted by the Agent to any amendment, waiver or other modification of this Agreement to be executed (or not to be executed) by the Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Agent, it is understood that in all cases the Agent shall be fully justified in failing or refusing to take any such action under this Agreement as it deems appropriate. This provision is intended solely for the benefit of the Agent and its successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim under or in relation to any Transaction Document, and shall be entitled to act or confer any rights or benefits on any party hereto. If refrain from acting in accordance with the instructions of a Majority in Interest; if such instructions are not provided despite the Agent’s request therefor, the Agent shall be entitled to refrain from such act or taking such action, and if such action is taken, shall be entitled to appropriate indemnification from the Secured Parties in respect of actions to be taken by the Agent; and the Agent shall not incur liability to any person or entity by reason of so refraining. Without limiting the foregoing, (a) no Secured Party shall have any right of action whatsoever against the Agent as a result of the Agent acting or refraining from acting hereunder in accordance with the terms of the Agreement or any other related agreementTransaction Document, and the Company Debtor shall have no right to question or challenge the authority of, or the instructions given to, the Agent pursuant to the foregoing and (b) the Agent shall not be required to take any action which the Agent believes (i) could reasonably be expected to expose it to personal liability, liability or (ii) require it to expend or risk its own funds, or (iii) is contrary to this Agreement, the Notes, any other related agreement Transaction Documents or applicable law. Notwithstanding anything contained herein to the contrary, the Agent shall not release any Collateral with respect to any Debenture or amend the principal amount, interest rate or maturity date of such Debenture or expressly waive or release in writing any material claim against the Debenture without the written consent of the Secured Party holding such Debenture.

Certain Rights of the Agent. The Agent shall have the right to take any action with respect to the Collateral, on behalf of all of the Secured Parties. Whenever reference ; provided that the Agent shall not (x) release its interest in any material portion of the Collateral, unless (A) such Collateral is made in this Agreement to any action by, consent, designation, specification, requirement sold or approval of, notice, request or other communication from, or other direction given or action to be undertaken otherwise disposed of or to be (sold or not to be) suffered otherwise disposed of as part of or omitted by the Agent to in connection with any amendment, waiver sale or other modification of this Agreement to be executed (disposition permitted hereunder or not to be executed) by the Agent or to under any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Agent, it is understood that in all cases the Agent shall be fully justified in failing or refusing to take any such action under this Agreement as it deems appropriate. This provision is intended solely for the benefit of the Agent and its successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim under or in relation to any Transaction Document, or confer (B) if approved, authorized or ratified in writing by the Required Parties, or (y) subordinate its interests hereunder unless approved, authorized or ratified in writing by the Required Parties. In addition to the foregoing, to the extent practical, the Agent shall request instructions from the Secured Parties with respect to any rights other material act or benefits on action (including failure to act) in connection with the Agreement or any party hereto. If other Transaction Document, and shall be entitled to act or refrain from acting in accordance with the instructions of the Required Parties; if such instructions are not provided despite the Agent’s request therefor, the Agent shall be entitled to refrain from such act or taking such action, and if such action is taken, shall be entitled to appropriate indemnification from the Secured Parties in respect of actions to be taken by the Agent; and the Agent shall not incur liability to any person or entity by reason of so refraining. Without limiting the foregoing, (a) no Secured Party shall have any right of action whatsoever against the Agent as a result of the Agent acting or refraining from acting hereunder in accordance with the terms of the Agreement or any other related agreementTransaction Document, and the Company Debtors shall have no right to question or challenge the authority of, or the instructions given to, the Agent pursuant to the foregoing and (b) the Agent shall not be required to take any action which the Agent believes (i) could reasonably be expected to expose it to personal liability, liability or (ii) require it to expend or risk its own funds, or (iii) is contrary to this Agreement, the Notes, any other related agreement Transaction Documents or applicable law.

Certain Rights of the Agent. The Agent shall have the right to take any action with respect to the CollateralCollateral permitted under the Security Agreement, on behalf for the ratable benefit of all of the Secured PartiesHolders. Whenever reference is made in this Agreement to any action byTo the extent practical, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Agent to any amendment, waiver or other modification of this Agreement to be executed (or not to be executed) by the Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Agent, it is understood that in all cases the Agent shall be fully justified in failing or refusing to take any such action under this Agreement as it deems appropriate. This provision is intended solely for request instructions from the benefit of the Agent and its successors and permitted assigns and is not intended to and will not entitle the other parties hereto Holders with respect to any defense, claim material act or counterclaim under action (including failure to act) in connection with the Agreement or in relation to any other Transaction Document, and shall be entitled to act or confer refrain from acting in accordance with the instructions of Holders holding a majority in principal amount of Notes (based on then-outstanding principal amounts of Notes at the time of any rights or benefits on any party hereto. If such determination); if such instructions are not provided despite the Agent’s request therefor, the Agent shall be entitled to refrain from such act or taking such action, and if such action is taken, shall be entitled to appropriate indemnification from the Secured Parties Holders in respect of actions to be taken by the Agent; and the Agent shall not incur liability to any person or entity by reason of so refraining. Without limiting the foregoing, (a) no Secured Party Holder shall have any right of action whatsoever against the Agent as a result of the Agent acting or refraining from acting hereunder in accordance with the terms of the Agreement or any other related agreementTransaction Document, and the Company Debtor and ESI shall have no right to question or challenge the authority of, or the instructions given to, the Agent pursuant to the foregoing and (b) the Agent shall not be required to take any action which the Agent believes (i) could reasonably be expected to expose it to personal liabilityliability or cost or expense which will not be advanced or promptly reimbursed to Agent, or (ii) require it to expend or risk its own funds, or (iii) is contrary to this Agreement, the Notes, any other related agreement Transaction Documents or applicable law.

Certain Rights of the Agent. The Agent shall have the right to take any action with respect to the CollateralCollateral (as defined in the applicable Collateral Document), on behalf of itself and all of the Secured Parties. Whenever reference is made in this Agreement or any other Collateral Document to any action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Agent to any amendment, waiver or other modification of this Agreement (or any other Collateral Document) to be executed (or not to be executed) by the Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Agent, it is understood that in all cases the Agent shall be fully justified in failing or refusing to take any such action under this Agreement or any other Collateral Document as it deems appropriate. This provision is intended solely for the benefit of the Agent and its successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim under or in relation to any Transaction Document, or confer any rights or benefits on any party hereto. The Agent shall be entitled to refrain from any act or the taking of any action (including the failure to take an action) in connection herewith or from the exercise of any power, discretion or authority vested in it hereunder or thereunder unless and until the Agent shall have received written instructions in respect thereof from the Required Holders (or such greater number of Holders as may be expressly required herein) and, upon receipt of such instructions from the Required Holders (or such greater number of Holders as may be expressly required herein), the Agent shall be entitled to act or (where so instructed) refrain from action, or to exercise such power, discretion or authority, in accordance with such instructions. The Agent may at any time solicit written confirmatory instructions from the Required Holders (or such greater number of Holders as may be expressly required herein) or request an order of a court of competent jurisdiction as to any action that it may be requested or required to take, or that it may propose to take, in the performance of any of its obligations under this Agreement and each other Collateral Document. If such instructions or order are not provided despite the Agent’s request therefor, the Agent shall be entitled to refrain from such act or taking such actionaction and may suspend performance of such obligations as it determines to be appropriate until it receives such instructions or order, and if such action is taken, shall be entitled to appropriate indemnification from the Secured Parties in respect of actions to be taken by the Agent; and the Agent shall not incur liability to any person or entity by reason of so refraining. Without limiting the foregoing, (a) no Secured Party shall have any right of action whatsoever against the Agent as a result of the Agent acting or refraining from acting hereunder in accordance with the terms of the Agreement Agreement, any other Collateral Document, or any other related agreement, and the Company shall have no right to question or challenge the authority of, or the instructions given to, the Agent pursuant to the foregoing except in the case of the gross negligence or willful misconduct of the Agent as determined by a final judgment (not subject to further appeal) of a court of competent jurisdiction and (b) the Agent shall not be required to take any action which the Agent believes (i) could reasonably be expected to expose it to personal liability, or (ii) require it to expend or risk its own funds, or (iii) is contrary to this Agreement, the other Collateral Documents, the Notes, any other related agreement or applicable law.

Certain Rights of the Agent. (i) The Agents may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note, electronic transmission or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. In addition, the Loan Agent shall have be entitled to the right rights, benefits, protections, immunities and indemnities of the Note Administrator as set forth in Article VI of the Indenture; provided that such rights, benefits, protections, immunities and indemnities shall be in addition to take any rights, benefits, protections, immunities and indemnities afforded to the Loan Agent under this Agreement. (ii) any request or direction of the Borrower mentioned herein may be sufficiently evidenced by an Issuer Order; (iii) whenever in the administration of this Agreement or the Indenture an Agent shall (i) deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Agent appointed hereunder (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officer’s Certificate or Issuer Order or (ii) be required to determine the value of any Collateral or funds hereunder or the cash flows projected to be received therefrom, such Agent may, in the absence of bad faith on its part, rely on reports of nationally recognized accountants, investment bankers or other Persons qualified to provide the information required to make such determination, including nationally recognized dealers in securities of the type being valued and securities quotation services; (iv) as a condition to the taking or omitting of any action by it hereunder, the Agents may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in reliance thereon; (v) the Agents shall be under no obligation to exercise or to honor any of the rights or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request or direction of any Lenders pursuant to this Agreement and the Indenture, unless such Lenders shall have offered to the Agents security or indemnity reasonably satisfactory to the Agents against the costs, expenses and liabilities which might reasonably be incurred by it in compliance with such request or direction. The Agents shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Transaction Document in accordance with a request or consent of the Borrower or a Majority of the Lenders (or such other percentage of the Lenders expressly specified in this Agreement or such Transaction Document with respect to a particular matter) given in accordance with this Agreement or any other Transaction Document; (vi) No Agent shall be bound to make any investigation into the Collateralfacts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note or other documents, but any Agent may, in its discretion and, upon the written direction of a Majority of the Lenders or of a Rating Agency shall (subject to the right hereunder to be reasonably satisfactorily indemnified for associated expense and liability), make such further inquiry or investigation into such facts or matters as it may see fit. The reasonable expense of every such examination shall be paid by the Borrower as a Company Administrative Expense and, the relevant Agent shall be entitled, on reasonable prior notice to either of the Borrower and the Collateral Manager, to examine the books and records relating to the Loan and the Collateral and the premises of such Person to determine compliance with this Agreement, personally or by agent or attorney during such Person’s normal business hours and such Agent shall incur no liability of any kind by reason of such inquiry or investigation; provided that such Agent shall, and shall cause its agents, to hold in confidence all such information, except (A) to the extent disclosure may be required by law or by any regulatory authority or (B) to the extent that such Agent, in its sole judgment, may determine that such disclosure is consistent with its obligations hereunder; (vii) the Agents may execute any of the rights, privileges or powers hereunder or perform any duties hereunder either directly or by or through affiliates, agents or attorneys; provided that neither of the Agents shall be responsible for any misconduct or negligence on the part of any such non-affiliated agent or attorney appointed by it with due care; (viii) no Agent shall be liable for any action it takes, suffers or omits to take in good faith that it reasonably believes to be authorized or within its rights or powers or within its discretion hereunder, other than acts or omissions constituting gross negligence, willful misconduct or bad faith of such Agent’s duties hereunder; (ix) the permissive rights of the Agents to perform any discretionary act enumerated in this Agreement shall not be treated as a duty and the Agents shall not be answerable for other than its respective gross negligence, willful misconduct or bad faith; (x) nothing herein shall be construed to impose an obligation on the part of the Agents to monitor, recalculate, evaluate or (absent manifest error) verify any report, certificate or information received from the Borrower or Collateral Manager (unless and except to the extent otherwise expressly set forth herein) and all calculations made by the Agents in their respective roles hereunder shall (in the absence of manifest error) be final and binding on all parties; (xi) the Agents shall not be responsible or liable for the actions or omissions of, or any inaccuracies in the records of, any non-Affiliated custodian, transfer agent, paying agent or calculation agent (other than itself in such capacities), clearing agency, loan syndication, administrative or similar agent, DTC, Euroclear or Clearstream, or for the acts or omissions of the Collateral Manager or the Borrower; (xii) the Agents shall not be required to give any bond or surety, or provide any indemnity, in respect of the execution and performance of this Agreement or the Indenture or the exercise of any of their respective powers granted hereunder; (xiii) in making or disposing of any investment permitted by the Indenture, each of the Agents is authorized to deal with itself (in its individual capacity) or with any one or more of its Affiliates, in each case on an arm’s-length basis and on standard market terms, whether it or such Affiliate is acting as a sub-agent of the Agent or for any third Person or dealing as principal for its own account; (xiv) in the event that the Bank is also acting in any capacity hereunder or under the Indenture other than Note Administrator and/or Loan Agent, as applicable, the rights, benefits, protections, immunities and indemnities afforded to the Agents pursuant to this Article VII (The Trustee and the Loan Agent) hereof shall also be afforded to the Bank acting in such capacities; provided that in the case of the Bank acting as Loan Agent or Note Administrator, such rights, benefits, protections, immunities and indemnities shall be in addition to any rights, benefits, protections, immunities and indemnities provided herein, in the Indenture, or any other document to which the Bank in such capacity is a party, as applicable; provided further, that, the foregoing shall not impose on the Loan Agent any duties or standards of care of the Note Administrator; (xv) no Agent shall be responsible for delays or failures in performance resulting from acts beyond its control (such circumstances include but are not limited to acts of God, strikes, lockouts, riots, acts of war, terrorism, loss or malfunctions of utilities, computer (hardware or software) any act or provision of any present or future law or regulation or governmental authority, accidents, labor disputes, disease, epidemic, pandemic, quarantine, national emergency or the unavailability of the Federal Reserve Bank wire or telex or other wire or communications services); (xvi) notwithstanding any term hereof to the contrary, the Agents shall be under no obligation to evaluate the sufficiency of the documents or instruments delivered to them by or on behalf of all the Borrower in connection with the Grant by the Borrower to the Trustee of any item constituting the Collateral or otherwise, or in that regard to examine any Mortgage Assets, in order to determine compliance with applicable requirements of or restrictions on transfer imposed by the documentation underlying such Mortgage Assets nor to re-register or otherwise change the registration or form in which the Mortgage Assets are Delivered, transferred, assigned or pledged by the Borrower to the Trustee; (xvii) to the extent any defined term hereunder, or any calculation required to be made or determined by the Agents hereunder, is dependent upon or defined by reference to GAAP, the Agents shall be entitled to request and receive (and rely upon) instruction from the Borrower or the accountants identified in the Accountants’ Report (and in the absence of its receipt of timely instruction therefrom, shall be entitled to obtain from an Independent accountant at the expense of the Secured PartiesBorrower) as to the application of GAAP in such connection, in any instance; (xviii) the Agents or their Affiliates are permitted to provide services and to receive additional compensation that could be deemed to be in the Agent’s economic self-interest for (i) serving as investment adviser, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain of the Eligible Investments, (ii) using Affiliates to effect transactions in certain Eligible Investments and (iii) effecting transactions in certain E▇▇▇▇▇▇▇ Investments; if otherwise qualified, obligations of the Bank or any of its Affiliates shall qualify as Eligible Investments hereunder. Such compensation shall not be considered an amount that is reimbursable or payable to the Loan Agent as part of the compensation hereunder; (xix) none of the Agents shall have any obligation to determine if a Mortgage Asset meets the criteria or eligibility restrictions imposed by the Indenture or whether the conditions specified in the definition of “Delivered” have been complied with; (xx) the Agents shall not be deemed to have notice or knowledge of any matter unless a Trust Officer) has actual knowledge thereof and such notice references the Loans generally, the Borrower or this Agreement. Whenever reference is made in this Agreement to a Default or an Event of Default such reference shall, insofar as determining any action byliability on the part of the Agents is concerned, consentbe construed to refer only to a Default or an Event of Default of which the applicable Agent is deemed to have knowledge in accordance with this paragraph; (xxi) no Agent shall have any liability for the acts or omissions of the Collateral Manager, designationthe Note Administrator, specificationthe Borrower, requirement any Paying Agent (other than such Agent) or approval of, notice, request any Authenticating Agent (other than such Agent) appointed under or other communication from, or other direction given or action pursuant to be undertaken or to be (or not to be) suffered or omitted by the Agent to any amendment, waiver or other modification of this Agreement or the other Collateral Documents; (xxii) no Agent is responsible or liable for the preparation, filing, continuation or correctness of financing statements or the validity or perfection of any lien or security interest; (xxiii) notwithstanding any term hereof to be executed (or not to be executed) by the Agent or to any electioncontrary, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Agent, it is understood that in all cases the no Agent shall be fully justified in failing or refusing under any obligation to take any such action under this Agreement as it deems appropriate. This provision is intended solely for evaluate the benefit sufficiency of the documents or instruments delivered to it by or on behalf of the Borrower in connection with the Grant by the Borrower to the Trustee of any item constituting the Mortgage Assets or otherwise, or in that regard to examine any Mortgage Assets, in order to determine compliance with applicable requirements of and restrictions on transfer imposed by the documentation underlying such Mortgage Assets nor to re-register or otherwise change the registration or form in which the Mortgage Assets are Delivered, transferred, assigned or pledged by the Borrower to the Trustee; (xxiv) no Agent and its successors and permitted assigns and shall be required to qualify in any jurisdiction in which it is not intended presently qualified to and will not entitle perform its obligations as Agent; (xxv) notwithstanding anything herein inconsistent or to the other parties hereto to any defense, claim or counterclaim under or in relation to any Transaction Document, or confer any rights or benefits on any party hereto. If such instructions are not provided despite the Agent’s request thereforcontrary, the Loan Agent shall be entitled to refrain from all the same rights, privileges, protections, immunities and indemnities in this Agreement as are afforded the Bank in the Indenture, all of which are incorporated herein, in addition to any such act rights, privileges, protections, immunities and indemnities contained herein. Whether or taking such actionnot therein expressly so provided, and if such action is taken, every provision of this Agreement relating to the conduct or affecting liability of or affording protection to either Agent shall be entitled subject to appropriate indemnification from the Secured Parties provisions of Section 7.2 (Appointment), 7.3 (Nature of Duties) and 7.5 (Certain Rights of Agents) of this Agreement. Notwithstanding anything herein inconsistent or to the contrary, in respect the event the Bank is also acting in the capacity of actions Paying Agent, Transfer Agent, Calculation Agent, Loan Agent or Securities Intermediary, the rights, protections, benefits, immunities and indemnities afforded to the Note Administrator pursuant to Article VI of the Indenture shall also be taken by afforded to the Agent; and the Agent shall not incur liability to any person or entity by reason of so refraining. Without limiting the foregoing, Bank acting in such capacities; (axxvi) no Secured Party shall have any right provision of action whatsoever against the Agent as a result of the Agent acting or refraining from acting hereunder in accordance with the terms of the this Agreement or any other related agreement, and the Company Transaction Document shall have no right to question or challenge the authority of, or the instructions given to, the require any Agent pursuant to the foregoing and (b) the Agent shall not be required to take any action which the Agent believes (i) could reasonably be expected to expose it to personal liability, or (ii) require it to expend or risk its own fundsfunds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it unless such risk or liability relates to its ordinary services; (iiixxvii) is contrary no Agent shall be liable for any error of judgment made in good faith by such Agent, unless it shall be proven that such Agent was negligent in ascertaining the pertinent facts; (xxviii) the Agents shall not be liable with respect to this Agreementany action taken or omitted to be taken by it in good faith in accordance with the direction of the Borrower, the NotesLenders or the Collateral Manager; (xxix) to help fight the funding of terrorism and money laundering activities, the Agents shall obtain, verify, and record information that identifies individuals or entities that establish a relationship or open an account with the Agents. The Agents shall ask for the name, address, tax identification number and other information that shall allow the Agents to identify the individual or entity who is establishing the relationship or opening the account. The Agents may also ask for formation documents such as articles of incorporation, an offering memorandum or other identifying documents to be provided; (xxx) the Agents shall have no responsibility to the Borrower or the Secured Parties under this Agreement or the Indenture to make any other related agreement inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Borrower (or the Collateral Manager on behalf of the Borrower); (xxxi) notwithstanding any term hereof to the contrary, no Agent shall be under a duty or obligation to evaluate the sufficiency of the documents or instruments Delivered by or on behalf of the Borrower in connection with the Grant by the Borrower to the Trustee of any item constituting the Collateral or otherwise, or in that regard to examine any Mortgage Assets, in order to determine compliance with applicable law.requirements of or restrictions on transfer imposed by the documentation underlying such Mortgage Assets nor to re-register or otherwise change the registration or form in which the Mortgage Assets are Delivered, transferred, assigned or pledged by the Borrower to the Trustee under the Indenture; and (xxxii) to the extent of any ambiguity in the interpretation of any definition or term contained in this Agreeme