Common use of Directing the Making of Investments Clause in Contracts

Directing the Making of Investments. Any cash held in Accounts maintained hereunder shall be invested and reinvested in Permitted Investments from time to time by Depositary Agent at the expense and risk of Borrower (a) as directed by Borrower, (i) so long as Lender has not notified a Responsible Officer of Depositary Agent that an “Event of Default” under the Credit Agreement has occurred and is continuing and that Lender intends to direct the making of investments or (ii) after Lender has notified Depositary Agent that any such Event of Default no longer exists, and (b) in [specify money market account], if Lender has notified a Responsible Officer of Depositary Agent that an Event of Default has occurred and is continuing and that it is electing to have such funds invested in [money market account], until such time, if ever, as Lender notifies Depositary Agent that any such Event of Default no longer exists; provided, that, Depositary Agent’s obligation to invest such amounts is conditioned upon receipt by Depositary Agent of a valid Form W-9 of the Internal Revenue Service of the United States from Borrower in accordance with Section 2.2.3. The right to direct the manner of investment includes, but is not limited to, the right (i) to direct Depositary Agent to sell any Permitted Investment or hold it until maturity and (ii) upon any sale at maturity of any Permitted Investment, to direct Depositary Agent to reinvest the proceeds thereof, plus any interest received by Depositary Agent thereon, in Permitted Investments or to hold such proceeds and interest for application pursuant to the terms of this Agreement. Depositary Agent shall have no liability for any loss resulting from any such investment other than any such loss caused solely by Depositary Agent’s willful misconduct or gross negligence. Except as otherwise provided in this Section 2.2, any balances in the Accounts shall remain uninvested.

Directing the Making of Investments. Any cash held in Accounts maintained hereunder shall be invested and reinvested in Permitted Investments from time to time by Depositary Agent at the expense and risk of Borrower the Company (a) as directed by Borrowerthe Company, (i) so long as Lender Collateral Agent has not notified a Responsible Officer of Depositary Agent that an “Event of Default” under the Credit Note Purchase Agreement has occurred and is continuing and that Lender intends to direct the making of investments or (ii) after Lender Collateral Agent has notified Depositary Agent that any such Event of Default no longer exists, and (b) in [specify money market account]as directed by Collateral Agent, if Lender Collateral Agent has notified a Responsible Officer of Depositary Agent that an Event of Default has occurred and is continuing (and that it is electing Depositary has had reasonable time, in any event not to have exceed 3 Business Days, to act on such funds invested in [money market account]notice), until such time, if ever, as Lender Collateral Agent notifies Depositary Agent that any such Event of Default no longer exists; provided, however, that, if the Company fails to so direct Depositary, or if there exists an Event of Default and Collateral Agent fails to so direct Depositary, by 11:00 a.m. on the date on which the term of any Permitted Investment terminates, amounts in respect of such terminating Permitted Investment shall be reinvested in any mutual funds for which Depositary Agentor any Affiliate of Depositary may serve as investment advisor or other service provider. The other parties hereto acknowledge that shares in this mutual fund are not obligations of Deutsche Bank Trust Company Americas or any of its Affiliates, are not deposits and are not insured by the FDIC. Depositary or its Affiliate may be compensated by the mutual fund for services rendered in its capacity as investment advisor, or other service provider, such as provider of shareholder servicing and distribution services, and such compensation is both described in detail in the prospectus for the fund, and is in addition to the compensation, if any, paid to Deutsche Bank Trust Company Americas in its capacity as Depositary hereunder. Depositary’s obligation to invest such amounts is conditioned upon receipt by Depositary Agent from the Company of a valid Form W-9 of the Internal Revenue Service of the United States from Borrower in accordance with Section 2.2.3. The right to direct the manner of investment includes, but is not limited to, the right (i) to direct Depositary Agent to sell any Permitted Investment or hold it until maturity and (ii) upon any sale at maturity of any Permitted Investment, to direct Depositary Agent to reinvest the proceeds thereof, plus any interest received by Depositary Agent thereon, in Permitted Investments or to hold such proceeds and interest for application pursuant to the terms of this Agreement. Depositary Agent shall have no liability for any loss resulting from any such investment other than any such loss caused solely by Depositary AgentDepositary’s willful misconduct or gross negligence. Except as otherwise provided in this Section 2.2, any balances in the Accounts shall remain uninvested.. [***] Confidential Treatment Requested

Directing the Making of Investments. Any cash held in the Accounts maintained hereunder shall be invested and reinvested in Permitted Investments from time to time by Depositary Agent at the expense and risk of Borrower the Company (a) as directed by Borrowerthe Company, (i) so long as Lender Collateral Agent has not notified a Responsible Officer of Depositary Agent that an “Event of Default” under the Credit Note Purchase Agreement has occurred and is continuing and that Lender intends to direct the making of investments or (ii) after Lender Collateral Agent has notified Depositary Agent that any such Event of Default no longer exists, and (b) in [specify money market account]as directed by Collateral Agent, if Lender Collateral Agent has notified a Responsible Officer of Depositary Agent that an Event of Default has occurred and is continuing (and that it is electing Depositary has had reasonable time, in any event not to have exceed three Business Days, to act on such funds invested in [money market account]notice), until such time, if ever, as Lender Collateral Agent notifies Depositary Agent that any such Event of Default no longer exists; provided, however, that, if the Company fails to so direct Depositary, or if there exists an Event of Default and Collateral Agent fails to so direct Depositary, by 11:00 a.m. on the date on which the term of any Permitted Investment terminates, amounts in respect of such terminating Permitted Investment shall be reinvested in any money market mutual funds that are registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, and operated in accordance with Rule 2a-7 and that at the time of such investment are rated Aaa by Moody’s and/or AAAm by S&P, including such funds for which Depositary Agentor any Affiliate of Depositary provides investment advice or other services. The other parties hereto acknowledge that shares in this mutual fund are not obligations of Deutsche Bank Trust Company Americas or any of its Affiliates, are not deposits and are not insured by the FDIC. Depositary or its Affiliate may be compensated by the mutual fund for services rendered in its capacity as investment advisor, or other service provider, such as provider of shareholder servicing and distribution services, and such compensation is both described in detail in the prospectus for the fund, and is in addition to the compensation, if any, paid to Deutsche Bank Trust Company Americas in its capacity as Depositary hereunder. Depositary’s obligation to invest such amounts is conditioned upon receipt by Depositary Agent from the Company of a valid Form W-9 of the Internal Revenue Service of the United States from Borrower in accordance with Section 2.2.3. The right to direct the manner of investment includes, but is not limited to, the right (i) to direct Depositary Agent to sell any Permitted Investment or hold it until maturity and (ii) upon any sale at maturity of any Permitted Investment, to direct Depositary Agent to reinvest the proceeds thereof, plus any interest received by Depositary Agent thereon, in Permitted Investments or to hold such proceeds and interest for application pursuant to the terms of this Agreement. Depositary Agent shall have no liability for any loss resulting from any such investment other than any such loss caused solely by Depositary AgentDepositary’s willful misconduct or gross negligence. [***] Confidential Treatment Requested Except as otherwise provided in this Section 2.2, any balances in the Accounts shall remain uninvested. The Depositary shall have no obligation to invest or reinvest any balances if deposited with the Depositary after 11:00 a.m. (E.S.T.) on such day of deposit. Instructions received after 11:00 a.m.(E.S.T.) will be treated as if received on the following business day (if applicable).

Directing the Making of Investments. Any cash held in Accounts maintained hereunder shall be invested and reinvested in Permitted Investments from time to time by Depositary Agent at the expense and risk of Borrower (a) as directed by Borrower, (i) so long as Lender Collateral Agent has not notified a Responsible Officer of Depositary Agent that an “Event of Default” under the Credit Agreement has occurred and is continuing and that Lender intends to direct the making of investments or (ii) after Lender Collateral Agent has notified Depositary Agent that any such Event of Default no longer exists, and (b) in [specify money market account]if Borrower fails to so direct Depositary, or if Lender has notified a Responsible Officer of Depositary Agent that there exists an Event of Default has occurred and is continuing and that it is electing Collateral Agent fails to have so direct Depositary, by [***] on the date on which the term of any Permitted Investment terminates, amounts in respect of such funds invested in [money market account], terminating Permitted Investment will remain uninvested until such timetime as Borrower, or Collateral Agent if ever, as Lender notifies Depositary Agent that any such there exists an Event of Default no longer exists; providedDefault, that, directs Depositary Agentto invest such amounts in Permitted Investments. Depositary’s obligation to invest such amounts is conditioned upon receipt by Depositary Agent of a valid Form W-9 of the Internal Revenue Service of the United States from Borrower in accordance with Section 2.2.3. The right to direct the manner of investment includes, but is not limited to, the right (i) to direct Depositary Agent to sell any Permitted Investment or hold it until maturity and (ii) upon any sale at maturity of any Permitted Investment, to direct Depositary Agent to reinvest the proceeds thereof, plus any interest received by Depositary Agent thereon, in Permitted Investments or to hold such proceeds and interest for application pursuant to the terms of this Agreement. Depositary Agent shall have no liability for any loss resulting from any such investment other than any such loss caused solely by Depositary AgentDepositary’s willful misconduct or gross negligence. Except as otherwise provided in this Section 2.2, any balances in the Accounts shall remain uninvested.

Directing the Making of Investments. Any cash held in Accounts maintained hereunder shall be invested and reinvested in Permitted Investments from time to time by Depositary Agent at the expense and risk of Borrower the Company (a) as directed by Borrowerthe Company, (i) so long as Lender Collateral Agent has not notified a Responsible Officer of Depositary Agent that an “Event of Default” under the Credit Note Purchase Agreement has occurred and is continuing and that Lender intends to direct the making of investments or (ii) after Lender Collateral Agent has notified Depositary Agent that any such Event of Default no longer exists, and (b) in [specify money market account]as directed by Collateral Agent, if Lender Collateral Agent has notified a Responsible Officer of Depositary Agent that an Event of Default has occurred and is continuing (and that it is electing Depositary has had reasonable time, in any event not to have exceed [***] to act on such funds invested in [money market account]notice), until such time, if ever, as Lender Collateral Agent notifies Depositary Agent that any such Event of Default no longer exists; provided, however, that, if the Company fails to so direct Depositary, or if there exists an Event of Default and Collateral Agent fails to so direct Depositary, by [***], amounts in respect of such terminating Permitted Investment shall be reinvested in any mutual funds for which Depositary Agentor any Affiliate of Depositary may serve as investment advisor or other service provider. The other parties hereto acknowledge that shares in this mutual fund are not obligations of Deutsche Bank Trust Company Americas or any of its Affiliates, are not deposits and are not insured by the FDIC. Depositary or its Affiliate may be compensated by the mutual fund for services rendered in its capacity as investment advisor, or other service provider, such as provider of shareholder servicing and distribution services, and such compensation is both described in detail in the prospectus for the fund, and is in addition to the compensation, if any, paid to Deutsche Bank Trust Company Americas in its capacity as Depositary hereunder. Depositary’s obligation to invest such amounts is conditioned upon receipt by Depositary Agent from the Company of a valid Form W-9 of the Internal Revenue Service of the United States from Borrower in accordance with Section 2.2.3. The right to direct the manner of investment includes, but is not limited to, the right (i) to direct Depositary Agent to sell any Permitted Investment or hold it until maturity and (ii) upon any sale at maturity of any Permitted Investment, to direct Depositary Agent to reinvest the proceeds thereof, plus any interest received by Depositary Agent thereon, in Permitted Investments or to hold such proceeds and interest for application pursuant to the terms of this Agreement. Depositary Agent shall have no liability for any loss resulting from any such investment other than any such loss caused solely by Depositary AgentDepositary’s willful misconduct or gross negligence. Except as otherwise provided in this Section 2.2, any balances in the Accounts shall remain uninvested.. [***] Confidential Treatment Requested

Directing the Making of Investments. Any cash held in Accounts maintained hereunder shall be invested and reinvested in Permitted Investments from time to time by Depositary Agent at the expense and risk of Borrower (a) as directed by Borrower, (i) so long as Lender Collateral Agent has not notified a Responsible Officer of Depositary Agent that an “Event of Default” under the Credit Agreement has occurred and is continuing and that Lender intends to direct the making of investments or (ii) after Lender Collateral Agent has notified Depositary Agent that any such Event of Default no longer exists, and (b) in [specify money market account]if Borrower fails to so direct Depositary, or if Lender has notified a Responsible Officer of Depositary Agent that there exists an Event of Default has occurred and is continuing and that it is electing Collateral Agent fails to have so direct Depositary, by 11:00 a.m.on the date on which the term of any Permitted Investment terminates, amounts in respect of such funds invested in [money market account], terminating Permitted Investment will remain uninvested until such timetime as Borrower, or Collateral Agent if ever, as Lender notifies Depositary Agent that any such there exists an Event of Default no longer exists; providedDefault, that, directs Depositary Agentto invest such amounts in Permitted Investments. Depositary’s obligation to invest such amounts is conditioned upon receipt by Depositary Agent of a valid Form W-9 of the Internal Revenue Service of the United States from Borrower in accordance with Section 2.2.3. The right to direct the manner of investment includes, but is not limited to, the right (i) to direct Depositary Agent to sell any Permitted Investment or hold it until maturity and (ii) upon any sale at maturity of any Permitted Investment, to direct Depositary Agent to reinvest the proceeds thereof, plus any interest received by Depositary Agent thereon, in Permitted Investments or to hold such proceeds and interest for application pursuant to the terms of this Agreement. Depositary Agent shall have no liability for any loss resulting from any such investment other than any such loss caused solely by Depositary AgentDepositary’s willful misconduct or gross negligence. Except as otherwise provided in this Section 2.2, any balances in the Accounts shall remain uninvested.

Directing the Making of Investments. Any cash held in Accounts maintained hereunder shall may be invested and reinvested in Permitted Investments from time to time by Depositary Agent the Accounts Bank at the expense and risk of the Borrower (a) as directed in writing by Borrowerthe Borrower at any time other than during a Control Notice Period (which may be in the form of a standing instruction and shall specify the particular investment to be made, (i) so long as Lender has not notified a Responsible Officer of Depositary Agent that an “Event of Default” including any standing instructions existing on or prior to the date hereof under the Credit Agreement has occurred Second Amended and is continuing and that Lender intends to direct the making of investments or (ii) after Lender has notified Depositary Agent that any such Event of Default no longer existsRestated Accounts Agreement), and (b) as directed in [specify money market account], if Lender has notified a Responsible Officer of Depositary Agent that an Event of Default has occurred and is continuing and that it is electing to have such funds invested in [money market account], until such time, if ever, as Lender notifies Depositary Agent that writing by the Common Security Trustee during any such Event of Default no longer existsControl Notice Period; provided, thathowever, Depositary Agentthat the Accounts Bank’s obligation to invest such amounts is conditioned upon receipt by Depositary Agent the Accounts Bank of a valid Form W-9 of the Internal Revenue Service of the United States from Borrower of America in accordance with Section 2.2.32.03(c) (Permitted Investments- Earnings) and shall be subject in each case to the availability of any such investment with the Accounts Bank. The Accounts Bank shall not have any obligation to invest or reinvest funds held in any Account on any day to the extent that the Accounts Bank has not received written instructions from the Borrower or, during a Control Notice Period, the Common Security Trustee, on or prior to 11:00 a.m. New York City time. Instructions received after 11:00 a.m. New York City time will be deemed received the next Business Day. Absent written instructions from the Borrower or the Common Security Trustee (during a Control Notice Period), the Accounts Bank shall not invest the amounts held in the Accounts (it being acknowledged that, as of the date of this Agreement, standing instructions from the Borrower to the Accounts Bank for the Accounts established pursuant to the Resignation, Appointment and Acceptance Agreement are in effect). The right of the Borrower or the Common Security Trustee, as applicable, to direct the manner of investment includes, but is not limited to, the right (i) to direct Depositary Agent the Accounts Bank to sell any Permitted Investment or hold it until maturity and maturity, (ii) upon any sale at maturity of any Permitted Investment, to direct Depositary Agent the Accounts Bank to reinvest the proceeds thereof, plus any interest received by Depositary Agent the Accounts Bank thereon, in Permitted Investments or to hold such proceeds and interest for application pursuant to the terms of this Agreement, and (iii) to exercise any voting rights with respect to any Permitted Investment. Depositary Agent No Secured Party shall have no any liability for any loss resulting from the making or liquidation of any such investment other than any such loss caused solely by Depositary Agentsuch Secured Party’s willful misconduct or gross negligencenegligence as determined by a final and non-appealable judgment of a court of competent jurisdiction. Except as otherwise provided in this Section 2.2, any balances in It is agreed and understood that the Accounts Bank may earn fees associated with the investments outlined above in accordance with the terms of such investments. In no event shall remain uninvestedthe Account Banks be deemed an investment manager or adviser in respect of any selection of any investments hereunder. It is understood and agreed that the Account Banks is permitted to receive additional compensation that could be deemed to be in its economic self-interest for (i) serving as investment adviser, administrator, shareholder servicing agent, custodian or sub custodian with respect to certain of the investments, (ii) using affiliates to effect transactions in certain investments and (iii) effecting transactions in investments.