Common use of Liability of Agent Clause in Contracts

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (ai) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (bii) the performance or observance of any of the covenants or agreements specified in any Financing Document; (ciii) the satisfaction of any condition specified in any Financing Document, except receipt of items required to be delivered to Agent; (div) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (ev) the existence or non-existence of any Default or Event of Default; or (fvi) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (ai) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (bii) the performance or observance of any of the covenants or agreements specified in any Financing DocumentAgreement; (ciii) the satisfaction of any condition specified in any Financing Document, except receipt of items required to be delivered to Agent; (div) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (ev) the existence or non-existence of any Default or Event of Default; or (fvi) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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 Erroneous Payments received by them).

Liability of Agent. Neither the Agent nor any of its affiliates nor any of their respective directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender for any action taken or not taken by it in connection herewith (a) with the Financing Documentsconsent or at the request of the Required Lenders (or, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to when expressly required hereby, all or a different proportion of the extent Lenders) or (b) in the absence of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdictionmisconduct. Neither the Agent nor any of its affiliates nor any of their respective directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (ai) any statement, warranty or representation made in connection with any Financing Document this Agreement or any borrowing hereunder; (bii) the performance or observance of any of the covenants or agreements specified in any Financing Documentof the Borrower; (ciii) the satisfaction of any condition specified in any Financing DocumentArticle 3, except receipt of items required to be delivered to the Agent; or (div) the validity, effectiveness, sufficiency effectiveness or genuineness of any Financing Documentthis Agreement, any Lien purported to be created or perfected thereby the Notes or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Partyherewith. The Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. Without limiting the generality of the foregoing, the use of the term “agent” in 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 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. Except as expressly set forth herein, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any apportionment information relating to the Borrower or distribution any of payments made its Subsidiaries that is communicated to or obtained by it the bank serving as the Agent or any of its Affiliates 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)capacity.

Liability of Agent. Neither Agent nor any of its directors, officers, agents, servicers, trustees, investment managers, servicers managers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, servicers, trustees, investment managers, servicers managers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither the Agent nor any of its Affiliates or any of their respective directors, officers, agents, trustees, investment managers, servicers employees or employees advisors shall be liable for any action taken or omitted to be taken by it or them in good faith under or in connection with this Agreement or any other Loan Document in the absence of its or their own gross negligence or willful misconduct. Without limiting the generality of the foregoing, the Agent (1) may treat the payee of any Note as the holder thereof until the Agent receives written notice of the assignment or transfer thereof signed by such payee and in form satisfactory to the Agent; (2) may consult with legal counsel (including counsel for the Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants, or experts; (3) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any action taken statements, warranties, or not taken by it representations made in or in connection with the Financing Documents, except that Agent this Agreement; (4) shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or not have any duty to ascertain, ascertain or to inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) as to the performance or observance of any terms, covenants, or conditions of this Agreement on the part of the covenants Borrower (other than the payment of principal, interest and fees due hereunder), or agreements specified in any Financing Documentto inspect the property (including the books and records) of the Borrower; (c5) shall not be responsible to any Lender for the satisfaction of any condition specified in any Financing Document; (d) the due execution, legality, validity, effectivenessenforceability, genuineness, perfection, sufficiency or genuineness value of any Financing Document, any Lien purported to be created or perfected thereby this Agreement or any other instrument or writing document furnished pursuant hereto or the value, sufficiency, creation, perfection or priority of any Lien in connection therewithany collateral security; (e6) the existence or non-existence shall be deemed to have no knowledge of any Default unless and until written notice thereof is given to the Agent by the Borrower or Event a Lender; and (7) shall incur no liability under or in respect of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability this Agreement by acting in reliance upon any notice, consent, certificate, statement, certificate or other instrument or writing (which may be sent by any telecommunication device capable of creating a bank wire, facsimile or written record (including electronic transmission or similar writingmail)) reasonably believed by it to be genuine and signed or to be signed sent by the proper party or parties. 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).

Liability of Agent. Neither (a) The Agent nor shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (i) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing, (ii) 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 the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.09); provided that the Agent shall not be required to take any action that, in its opinion or the opinion of its legal counsel, may expose the Agent to liability or that is contrary to this Agreement or applicable law, including, for the avoidance of doubt, any action that may be in violation of the automatic stay under any debtor relief law, and (iii) except as expressly set forth herein, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings or any of its directors, officers, agents, trustees, investment managers, servicers Subsidiaries that is communicated to or employees obtained by the bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be liable with respect to its specific duties set forth hereunder but only to necessary under the extent circumstances as provided in Section 10.09) or in the absence of its own gross negligence or willful misconduct in misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until notice thereof is given to the discharge thereof as determined Agent by the Borrower or a final non-appealable judgment of a court of competent jurisdiction. Neither Lender, and the Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall not be responsible for or have any duty to ascertain, ascertain or inquire into or verify (aA) any statement, warranty or representation made in or in connection with this Agreement, (B) the contents of any Financing Document certificate, report or any borrowing hereunder; other document delivered hereunder or in connection herewith, (bC) the performance or observance of any of the covenants covenants, agreements or agreements specified in other terms or conditions set forth herein, (D) the validity, enforceability, effectiveness or genuineness of this Agreement or any Financing Document; other agreement, instrument or document, or (cE) the satisfaction of any condition specified set forth in any Financing Document; (d) the validityArticle 4 or elsewhere herein, effectiveness, sufficiency or genuineness other than to confirm receipt of any Financing Document, any Lien purported items expressly required to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) delivered to the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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)Agent.

Liability of Agent. Neither (a) The Agent nor shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (i) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing, (ii) 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 the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.09), and (iii) except as expressly set forth herein, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings or any of its directors, officers, agents, trustees, investment managers, servicers Subsidiaries that is communicated to or employees obtained by the bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be liable with respect to its specific duties set forth hereunder but only to necessary under the extent circumstances as provided in Section 10.09) or in the absence of its own gross negligence or willful misconduct in misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until notice thereof is given to the discharge thereof as determined Agent by the Borrower or a final non-appealable judgment of a court of competent jurisdiction. Neither Lender, and the Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall not be responsible for or have any duty to ascertain, ascertain or inquire into or verify (aA) any statement, warranty or representation made in or in connection with this Agreement, (B) the contents of any Financing Document certificate, report or any borrowing hereunder; other document delivered hereunder or in connection herewith, (bC) the performance or observance of any of the covenants covenants, agreements or agreements specified in other terms or conditions set forth herein, (D) the validity, enforceability, effectiveness or genuineness of this Agreement or any Financing Document; other agreement, instrument or document, or (cE) the satisfaction of any condition specified set forth in any Financing Document; (d) the validityArticle 4 or elsewhere herein, effectiveness, sufficiency or genuineness other than to confirm receipt of any Financing Document, any Lien purported items expressly required to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) delivered to the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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)Agent.

Liability of Agent. Neither (a) The Agent nor shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (i) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing, (ii) 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 the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.09), and (iii) except as expressly set forth herein, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Parent or any of its directors, officers, agents, trustees, investment managers, servicers Subsidiaries that is communicated to or employees obtained by the bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be liable with respect to its specific duties set forth hereunder but only to necessary under the extent circumstances as provided in Section 10.09) or in the absence of its own gross negligence or willful misconduct in misconduct. The Agent shall be deemed not to have knowledge of any Event of Default unless and until written notice thereof is given to the discharge thereof as determined Agent by the Borrower or a final non-appealable judgment of a court of competent jurisdiction. Neither Lender, and the Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall not be responsible for or have any duty to ascertain, ascertain or inquire into or verify (aA) any statement, warranty or representation made in or in connection with this Agreement, (B) the contents of any Financing Document certificate, report or any borrowing hereunder; other document delivered hereunder or in connection herewith, (bC) the performance or observance of any of the covenants covenants, agreements or agreements specified in other terms or conditions set forth herein, (D) the validity, enforceability, effectiveness or genuineness of this Agreement or any Financing Document; other agreement, instrument or document, or (cE) the satisfaction of any condition specified set forth in any Financing Document; (d) the validitySection 4 or elsewhere herein, effectiveness, sufficiency or genuineness other than to confirm receipt of any Financing Document, any Lien purported items expressly required to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) delivered to the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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)Agent.

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Loan Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder hereunder, but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (ai) any statement, warranty or representation made in connection with any Financing Loan Document or any borrowing hereunder; hereunder or the contents of any certificate, financial statement or other report or document delivered under or in connection with any Loan Document, (bii) the performance or observance of any of the covenants or agreements specified in any Financing Loan Document; , (ciii) the satisfaction of any condition specified in any Financing Loan Document; , (div) the validity, effectiveness, sufficiency or genuineness of any Financing Loan Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; , (ev) the existence or non-existence of any Default or Event of Default; or (fvi) the financial condition of any Credit PartyLoan Party or the value or the sufficiency of any Collateral. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither the Agent nor any of its Affiliates or any of their respective directors, officers, agents, trustees, investment managers, servicers employees or employees advisors shall be liable for any action taken or omitted to be taken by it or them in good faith under or in connection with this Agreement or any other Loan Document in the absence of its or their own gross negligence or willful misconduct. Without limiting the generality of the foregoing, the Agent (1) may treat the payee of any Note as the holder thereof until the Agent receives written notice of the assignment or transfer thereof signed by such payee and in form satisfactory to the Agent; (2) may consult with legal counsel (including counsel for the Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants, or experts; (3) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any action taken statements, warranties, or not taken by it representations made in or in connection with the Financing Documents, except that Agent this Agreement; (4) shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or not have any duty to ascertain, ascertain or to inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) as to the performance or observance of any terms, covenants, or conditions of this Agreement on the part of the covenants Borrower (other than the payment of principal, interest and fees due hereunder), or agreements specified in any Financing Documentto inspect the property (including the books and records) of the Borrower; (c5) shall not be responsible to any Lender for the satisfaction of any condition specified in any Financing Document; (d) the due execution, legality, validity, effectivenessenforceability, genuineness, perfection, sufficiency or genuineness value of any Financing Document, any Lien purported to be created or perfected thereby this Agreement or any other instrument or writing document furnished in connection therewith; (e) pursuant hereto or the existence value, sufficiency, creation, perfection or non-existence priority of any Default Lien in any collateral security; and (6) shall incur no liability under or Event in respect of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability this Agreement by acting in reliance upon any notice, consent, certificate, statement, certificate or other instrument or writing (which may be sent by any telecommunication device capable of creating a bank wire, facsimile or written record (including electronic transmission or similar writingmail)) reasonably believed by it to be genuine and signed or to be signed sent by the proper party or parties. 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).

Liability of Agent. Neither the Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender for any action taken or not taken by it in connection herewith (i) with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to consent or at the extent request of the Required Banks or (ii) in the absence of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdictionmisconduct. Neither the Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (ai) any statement, warranty or representation made in connection with any Financing Document this Agreement or any borrowing hereunder; (bii) the performance or observance of any of the covenants or agreements specified in any Financing Documentof the Borrowers; (ciii) the satisfaction of any condition specified in any Financing DocumentSection 9, except receipt of items required to be delivered to the Agent; or (div) the validity, effectiveness, sufficiency effectiveness or genuineness of any Financing Documentthis Agreement, any Lien purported to be created or perfected thereby the Notes or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Partyherewith. The Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, request or statement (whether written or oral) or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) document believed by it to be genuine or to be signed or sent by the proper party or partiesparties and, in the case of legal matters, in relying on the advice of counsel (including counsel for the Borrowers). The 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 may treat 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 Banks that are named herein as the holders of the amount Notes and the indebtedness contemplated herein unless and until the Agent receives notice of the assignment of the Note and the indebtedness held by a Bank hereunder pursuant to which they are determined to be entitled (and such other Lenders hereby agree to return to such Lender any such erroneous payments received an assignment contemplated by them)Section 15.12 hereof.

Liability of Agent. Neither the Administrative Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender Bank for any action taken or not taken by it in connection herewith (i) with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to consent or at the extent request of the Required Banks or (ii) in the absence of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the Company or a Bank stating that a Default or Event of Default has occurred and specifying the nature thereof. Neither the Administrative Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible to any Bank for or have any duty to any Bank to ascertain, inquire into or verify (ai) any statement, warranty or representation made in connection with any Financing Document this Agreement or any borrowing hereunderhereunder or the issuance, amendment, renewal or extension of any Letter of Credit; (bii) the performance or observance of any of the covenants or agreements specified in of any Financing DocumentObligor; (ciii) the satisfaction of any condition specified in any Financing DocumentArticle III, except receipt of items required to be delivered to the Administrative Agent; (div) the validity, effectiveness, sufficiency effectiveness or genuineness of any Financing Documentthis Agreement, any Lien purported to be created or perfected thereby other Credit Document or any other instrument or writing furnished in connection therewithherewith; (ev) the existence or non-possible existence of any Default or Event of Default; or (fvi) the financial condition of the Company or any Credit Partyof its Subsidiaries; or (vii) the contents of any certificate, report or other document delivered hereunder or in connection herewith. The Administrative Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it in good faith to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither Agent nor any None of its directors, officers, agents, trustees, investment managers, servicers or employees the Agent-Related Persons shall (a) be liable to any Lender for any action taken or not omitted to be taken by it any of them under or in connection with this Agreement or any other Financing Document or the Financing Documents, transactions contemplated hereby (except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of for its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of order by a court of competent jurisdiction. Neither Agent nor any of its directors,), officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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 the 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), or (c) be responsible in any manner to any of the Lenders for any recital, statement, representation or warranty made by the Borrower or any Subsidiary or Affiliate of the Borrower, or any officer thereof, contained in this Agreement or in any other Financing Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Agent under or in connection with, this Agreement or any other Financing Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Financing Document, or for any failure of the Borrower or any other party to any Financing Document to perform its obligations hereunder or thereunder. No Agent-Related Person shall 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 any other Financing Document, or to inspect the properties, books or records of the Borrower or any of the Borrower’s Subsidiaries or Affiliates.

Liability of Agent. Neither the Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable for any action taken or omitted to be taken by it or them in good faith under or in connection with this Agreement in the absence of its or their own gross negligence or willful misconduct. Without limiting the generality of the foregoing, the Agent (1) may treat the payee of any Note as the holder thereof until the Agent receives written notice of the assignment or transfer thereof signed by such payee and in form satisfactory to the Agent; (2) may consult with legal counsel (including counsel for the Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants, or experts; (3) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any action taken statements, warranties, or not taken by it representations made in or in connection with the Financing Documents, except that Agent this Agreement; (4) shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or not have any duty to ascertain, ascertain or to inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) as to the performance or observance of any terms, covenants, or conditions of this Agreement on the part of the covenants Borrower (other than the payment of principal, interest and fees due hereunder), or agreements specified in any Financing Documentto inspect the property (including the books and records) of the Borrower; (c5) shall not be responsible to any Lender for the satisfaction of any condition specified in any Financing Document; (d) the due execution, legality, validity, effectivenessenforceability, genuineness, perfection, sufficiency or genuineness value of any Financing Document, any Lien purported to be created or perfected thereby this Agreement or any other instrument or writing document furnished in connection therewith; (e) pursuant hereto or the existence value, sufficiency, creation, perfection or non-existence priority of any Default Lien in any collateral security; and (6) shall incur no liability under or Event in respect of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability this Agreement by acting in reliance upon any notice, consent, certificate, statement, certificate or other instrument or writing (which may be a bank wiresent by telegram, telefax, or facsimile or electronic transmission or similar writingtransmission) reasonably believed by it to be genuine and signed or to be signed sent by the proper party or parties. 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).

Liability of Agent. Neither Agent nor any of its directors, officers, agents, subagents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Loan Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, subagents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Loan Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Loan Document; (c) the satisfaction of any condition specified in any Financing Loan Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Loan Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Loan Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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). Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.

Liability of Agent. Neither Agent nor (a) The Administrative Agent, when acting on behalf of the Credit Parties, may execute any of its respective duties under this Agreement by or through any of its officers, agents and employees, and neither the Administrative Agent nor its respective directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender for any action taken or not omitted to be taken by it in connection with good faith, or be responsible for the Financing Documentsconsequences of any oversight or error of judgment, or for any loss, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its any liability imposed by law by reason of Administrative Agent’s own gross negligence or willful misconduct misconduct, in the discharge thereof each case, as determined by a court of competent jurisdiction in a final and non-appealable judgment of a court of competent jurisdictionjudgment. Neither Administrative Agent nor any of its respective directors, officers, agents, trustees, investment managers, servicers or agents and employees shall in any event be liable for any action taken or omitted to be taken by it pursuant to instructions received by it from the requisite percentage of Lenders, or in reliance upon the advice of counsel selected by it; provided that, no action taken or not taken in accordance with the direction of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances) shall be deemed to constitute gross negligence or willful misconduct of the Administrative Agent, including, without limitation Section 9.03. Without limiting the foregoing, no Agent or any of its respective directors, officers, employees, or agents shall be: (i) responsible for the due execution, validity, genuineness, effectiveness, sufficiency, or have enforceability of, or for any duty to ascertainrecital, inquire into or verify (a) any statement, warranty or representation made in connection with in, this Agreement, any Financing other Loan Document or any borrowing hereunderrelated agreement, document or order; (bii) required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the covenants terms, conditions, covenants, or agreements specified in of this Agreement or any Financing Documentof the Loan Documents; (ciii) responsible for the satisfaction state or condition of any condition specified properties of the Loan Parties or any other obligor hereunder constituting Collateral for the Obligations or any information contained in any Financing Documentthe books or records of the Loan Parties; (div) responsible for the validity, effectivenessenforceability, sufficiency collectability, effectiveness or genuineness of any Financing Document, any Lien purported to be created or perfected thereby this Agreement or any other Loan Document or any other certificate, document or instrument or writing furnished in connection therewith; or (ev) responsible for the existence validity, priority or non-existence perfection of any Default Lien securing or Event of Default; purporting to secure the Obligations or (f) for the financial condition value or sufficiency of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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)Collateral.

Liability of Agent. Neither the Agent nor any of its officers, directors, officersemployees, agents, trustees, investment managers, servicers attorneys-in-fact or employees affiliates shall be (a) liable to any Lender for any waiver, consent or approval given or any action lawfully taken or not omitted to be taken by it such Person under or in connection with this Agreement, the Financing Documents, Notes or the other Related Writings or the transactions contemplated hereby or thereby (except that Agent shall be liable with respect to for its specific duties set forth hereunder but only to the extent of its or such Person’s own gross negligence or willful misconduct misconduct, to the extent determined in the discharge thereof as determined by a final final, non-appealable judgment of by a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document its duties expressly set forth herein) or any borrowing hereunder; (b) the performance or observance of responsible in any manner to any of the covenants Banks or agreements specified any participant for any recitals, statements, representations or warranties made by the Borrower, the Parent, or any of their respective Subsidiaries or any of their responsible officers, contained in this Agreement or any Financing Document; (c) Related Writing, or for any failure of the satisfaction Borrower, the Parent or any of their respective Subsidiaries or any condition specified in of their respective officers, or any Financing Document; (d) other party to this Agreement or any Related Writing to perform its obligations hereunder or thereunder, or for the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or genuineness any Related Writing or any instrument at any time constituting, or intended to constitute, collateral security for the Notes, or for the value of any Financing Documentsuch collateral security. Each Bank by its signature to this Agreement acknowledges and agrees that the Agent has made no representation or warranty, any Lien purported express or implied, with respect to be created or perfected thereby the creditworthiness, financial condition or any other instrument condition of Borrower, the Parent or writing any Subsidiary or the value of the Collateral or any other assets of the Borrower, the Parent or any of their respective Subsidiaries, or with respect to the statements contained in any information memorandum furnished in connection therewith; (e) herewith or in any other oral or written communication between the existence or non-existence Agent and such Bank. Each Bank acknowledges that it has made and shall continue to make its own independent investigation of any Default or Event of Default; or (f) the creditworthiness, financial condition and affairs of Borrower, the Parent and any Credit PartySubsidiary in connection with the extension of credit hereunder, and agrees that the Agent has no duty or responsibility, either initially or on a continuing basis, to provide any Bank with any credit or other information with respect thereto (other than such notices as may be expressly required to be given by Agent to the Banks hereunder), whether coming into its possession before the granting of the first Loans or at any time or times thereafter. The Agent shall not incur be under any liability by acting in reliance upon obligation to any Bank or participant to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any Related Writing or to ascertain whether any notice, consent, certificatewaiver or request delivered to it by the Borrower, statementthe Parent or any holder of any of the Notes shall have been duly authorized or is true, accurate and complete, or other writing (which may be a bank wireto inspect the properties, facsimile books or electronic transmission records of the Parent, the Borrower, any of their Subsidiaries or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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 Affiliate of any Lender to whom payment was due but not madeof them. Agent’s Special Counsel has only represented Agent and KeyBank National Association in connection with this Agreement, shall be to recover from the Notes and the other Lenders any payment Related Writings and the only attorney client relationship or duty of care is between Agent’s Special Counsel and Agent or KeyBank National Association. Each Bank has been independently represented by separate counsel on all matters regarding this Agreement, the Notes and the other Related Writings and the granting and perfecting of liens 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)Collateral.

Liability of Agent. Neither Agent nor any None of its directors, officers, agents, trustees, investment managers, servicers or employees the Agent-Related Persons shall (i) be liable to any Lender for any action taken or not omitted to be taken by it any of them under or in connection with the Financing Documents, this Agreement or any other Loan Document (except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of for its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directorsmisconduct), officers, agents, trustees, investment managers, servicers or employees shall (ii) be responsible for or have in any duty manner to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants Lenders for any recital, statement, representation or agreements specified warranty made by the Borrower or any Subsidiary or Affiliate of the Borrower, or any officer thereof, contained in this Agreement or in any Financing other Loan Document; (c) , or in any certificate, report, statement or other document referred to or provided for in, or received by the satisfaction Agent under or in connection with, this Agreement or any other Loan Document, or for the value of any condition specified in any Financing Document; (d) Collateral or the validity, effectiveness, genuineness, enforceability or sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby this Agreement or any other instrument Loan Document, or writing furnished in connection therewith; (e) for any failure of the existence Borrower or nonany other party to any Loan Document to perform its obligations hereunder or thereunder. No Agent-existence Related Person shall be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any Default of the agreements contained in, or Event conditions of, this Agreement or any other Loan Document, or to inspect the Properties, books or records of Default; the Borrower or (f) any of the financial condition of any Credit PartyBorrower’s Subsidiaries or Affiliates. Agent shall not incur have no obligation whatsoever to any liability by acting in reliance upon Lender or any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it Person to be genuine or to be signed assure that the property covered by the proper party Collateral Documents exists or partiesis owned by the Borrower or any other Credit Party or is cared for, protected or insured or has been encumbered or that the Liens granted to the Agent have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority. Agent No Agent-Related Person shall not be liable for any apportionment action taken 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 omitted to be entitled taken by Swing Line Lender under this Agreement (and such other Lenders hereby agree including, without limitation, Swing Line Lender’s failure to return adjust the Applicable Margin (with respect to such Lender Swing Line Loans) following any such erroneous payments received by themchanges thereto).

Liability of Agent. Neither The Agent shall exercise the same care to protect the interests of each Bank as it does to protect its own interests, so that so long as the Agent exercises such care it shall not be under any liability to any of the Banks, except for the Agent's gross negligence or willful misconduct with respect to anything it may do or refrain from doing. Subject to the immediately preceding sentence, neither the Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender for any action taken or not taken by it in connection with herewith in its capacity as Agent. Without limiting the Financing Documentsgenerality of the foregoing, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to neither the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify verify: (ai) any statement, warranty or representation made in connection with this Agreement, any Financing Document Loan Document, or any borrowing hereunder; (bii) the performance or observance of any of the covenants or agreements specified in any Financing Documentof the Borrowers; (ciii) the satisfaction of any condition specified in any Financing DocumentSections 3.1, 3.2 or 3.3, except receipt of items required to be delivered to the Agent; (div) the validity, effectiveness, sufficiency enforceability or genuineness of any Financing Documentthis Agreement, the Revolving Credit Notes, any Lien purported to be created or perfected thereby other Loan Document or any other document or instrument or writing furnished executed and delivered in connection therewithwith or as contemplated by this Agreement; (ev) the existence existence, value, collectibility or non-existence adequacy of the Collateral or any Default part thereof or Event the validity, effectiveness, perfection or relative priority of Defaultthe liens and security interests of the Banks (through the Agent) therein; or (fvi) the financial condition filing, recording, refiling, continuing or re-recording of any Credit Partyfinancing statement or other document or instrument evidencing or relating to the security interests or liens of the Banks (through the Agent) in the Collateral. The Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, statement or other writing (which may be a bank wire, facsimile or electronic transmission telex or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither the Administrative Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender Bank for any action taken or not taken by it in connection herewith (i) with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to consent or at the extent request of the Required Banks or (ii) in the absence of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. 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 an Account Party or a Bank. Neither the Administrative Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible to any Bank for or have any duty to any Bank to ascertain, inquire into or verify (ai) any statement, warranty or representation made in connection with any Financing Document this Agreement or any borrowing hereunderhereunder or the issuance, amendment, or extension of any Letter of Credit; (bii) the performance or observance of any of the covenants or agreements specified in of any Financing DocumentAccount Party; (ciii) the satisfaction of any condition specified in any Financing DocumentArticle III, except receipt of items required to be delivered to the Administrative Agent; (div) the validity, effectiveness, sufficiency effectiveness or genuineness of any Financing Documentthis Agreement, any Lien purported to be created or perfected thereby other Credit Document or any other instrument or writing furnished in connection therewithherewith; (ev) the existence or non-possible existence of any Default or Event of Default; or (fvi) the financial condition of any Credit Account Party or any Account Party’s Subsidiaries; or (vii) the contents of any certificate, report or other document delivered hereunder or in connection herewith. The Administrative Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it in good faith to be genuine or to be signed by the proper party or parties. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Bank or Fronting Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Bank or Fronting Issuing Bank (to the extent, in the case of a documentary condition, that such Bank or Fronting Issuing Bank received the applicable document) unless the Administrative Agent shall have received notice to the contrary from such Bank or Fronting Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent (i) shall have no fiduciary or other implied duties to the Banks, (ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Credit Documents that the Administrative Agent is required to exercise as directed in writing by the Required Banks (or such other number or percentage of the Banks as shall be expressly provided for herein or in the other Credit Documents), provided that the Administrative Agent shall not be required to take any action that is contrary to any Credit Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Banks in violation of any Debtor Relief Law; and (iii) shall not, except as expressly set forth herein and in the other Credit Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any apportionment information relating to an Account Party or distribution any of payments made its Affiliates that is communicated to or obtained by it the Person serving as the Administrative Agent or any of its Affiliates 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)capacity.

Liability of Agent. Neither (a) The Agent, when acting on behalf of the Lenders and the Issuing Bank, may execute any of its respective duties under this Agreement by or through any of its respective officers, agents and employees, and none of the Agent nor its directors, officers, agents or employees shall be liable to the Lenders or the Issuing Bank or any of them for any action taken or omitted to be taken in good faith, or be responsible to the Lenders or the Issuing Bank or to any of them for the consequences of any oversight or error of judgment, or for any loss, except to the extent of any liability imposed by law by reason of the Agent’s own gross negligence or willful misconduct. The Agent and their respective directors, officers, agents and employees shall in no event be liable to the Lenders or the Issuing Bank or to any of them for any action taken or omitted to be taken by them pursuant to instructions received by them from the Applicable Lenders or in reliance upon the advice of counsel selected by it. Without limiting the foregoing, none of the Agent, nor any of its directors, officers, agentsemployees, trustees, investment managers, servicers or employees agents (A) shall be liable responsible to any Lender or the Issuing Bank for the due execution, validity, genuineness, effectiveness, sufficiency, or enforceability of, or for any action taken or not taken by it in connection with the Financing Documentsrecital, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with in, this Agreement, any Financing Loan Document or any borrowing hereunder; related agreement, document or order, or (bB) shall be required to ascertain or to make any inquiry concerning the performance or observance by any Borrower of any of the covenants terms, conditions, covenants, or agreements specified in of this Agreement or any Financing Document; of the Loan Documents, or (cC) shall be responsible to any Lender or the satisfaction Issuing Bank for the state or condition of any condition specified properties of the Borrowers or any other obligor hereunder constituting Collateral for the Obligations of the Borrowers hereunder, or any information contained in the books or records of the Borrowers; or (D) shall be responsible to any Financing Document; (d) Lender or the Issuing Bank for the validity, effectivenessenforceability, sufficiency collectibility, effectiveness or genuineness of any Financing Document, any Lien purported to be created or perfected thereby this Agreement or any other Loan Document or any other certificate, document or instrument or writing furnished in connection therewith; or (eE) shall be responsible to any Lender or the existence Issuing Bank for the validity, priority or non-existence perfection of any Default lien securing or Event of Default; purporting to secure the Obligations or (f) the financial condition value or sufficiency of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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)Collateral.

Liability of Agent. Neither the Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees Related Parties shall be liable to any Lender for any action taken or not taken by it in connection herewith (a) with the Financing Documentsconsent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, except that or as the Agent shall believe in good faith to be liable with respect to its specific duties set forth hereunder but only to necessary, under the extent circumstances as provided in the Loan Documents) or (b) in the absence of its own gross negligence or willful misconduct in the discharge thereof as (such absence to be presumed unless otherwise determined by a final non-appealable judgment of a court of competent jurisdictionjurisdiction by a final and non-appealable judgment). Neither the Agent nor any of its directorsRelated Parties shall be deemed to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Agent by the Company or any Lender, officers, agents, trustees, investment managers, servicers or employees and neither the Agent nor any of its Related Parties shall be responsible for or have any duty to ascertain, inquire into or verify (ai) any statement, warranty or representation made in connection with any Financing Loan Document or any borrowing hereunder, or the contents of any certificate, report or other document delivered thereunder or in connection therewith; (bii) the performance or observance of any of the covenants or agreements specified in of any Financing DocumentBorrower or any Lender; (ciii) the satisfaction of any condition specified in any Financing DocumentArticle IV, except receipt of items required to be delivered to the Agent; or (div) the sufficiency, validity, effectivenessenforceability, sufficiency effectiveness or genuineness of any Financing Document, any Lien purported to be created or perfected thereby Loan Document or any other instrument or writing furnished in connection therewith; (e) herewith. Without limiting the existence or non-existence of foregoing, the Agent shall have no obligation to take any Default or Event of Default; or (f) the financial condition of any Credit Partyaction under Section 5.06. The Agent shall be entitled to rely, and shall not incur any liability by acting in reliance for relying, upon any notice, consentrequest, certificate, consent, statement, instrument, document or other writing (which may be a bank wireincluding any electronic message, facsimile Internet or electronic transmission intranet website posting or similar writingother distribution) believed by it to be genuine and to have been signed, sent or to be signed otherwise authenticated by the proper party Person (whether or partiesnot such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof). The Agent also shall be entitled to rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be liable for any apportionment or distribution of payments made by it the proper Person (whether or not such Person in good faith fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof), and if may act upon any such apportionment or distribution is subsequently determined statement prior to have been made in error the sole recourse receipt 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)written confirmation thereof.

Liability of Agent. Neither the Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender Bank for any action taken or not omitted to be taken by it or them under or in connection with any Loan Documents in the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent absence of its or their own gross negligence or willful misconduct misconduct. Without limitation of the generality of the foregoing, the Agent (a) may treat the payee of any Note as the holder thereof until the Agent receives written notice of the assignment or transfer thereof signed by such payee and in form satisfactory to the discharge thereof as determined Agent; (b) may consult with legal counsel (including counsel for the Borrowers), independent public accountants and other experts selected by a final non-appealable judgment it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of a court of competent jurisdiction. Neither Agent nor such counsel, accountants or experts; (c) makes no warranty or representation to any of its directors, officers, agents, trustees, investment managers, servicers or employees Bank and shall not be responsible to any Bank for any statements, warranties or representations made in or in connection with any Loan Document; (d) shall not have any duty to ascertain, ascertain or to inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) as to the performance or observance of any of the terms, covenants or agreements specified in conditions of any Financing DocumentLoan Document on the part of the Borrowers or any other Person or to inspect the property (including the books and records) of the Borrowers; (ce) shall not be responsible to any Bank for the satisfaction of any condition specified in any Financing Document; (d) the due execution, legality, validity, effectivenessenforceability, genuineness, perfection, sufficiency or genuineness value of any Financing Document, any Lien purported to be created or perfected thereby of the Loan Documents or any other instrument or writing document furnished in connection therewithpursuant thereto; (e) the existence or non-existence of any Default or Event of Default; or and (f) the financial condition shall incur no liability under or in respect of any Credit Party. Agent shall not incur any liability Loan Document by acting in reliance upon any notice, consent, certificate, statement, certificate or other instrument or writing (which may be a bank wireby telegram, facsimile cable or electronic transmission or similar writingtelex) believed by it to be genuine and signed or to be signed sent by the proper party or parties. 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).

Liability of Agent. As between the Company and the Agent, the Company assumes all risks of the acts or omissions of the Trustee with respect to the Trustee's use of the Letters of Credit. Neither the Agent nor any of its directors, officers, agents, trustees, investment managers, servicers officers or employees directors shall be liable to any Lender or responsible for: (i) the use which may be made of the Letters of Credit or for any action taken acts or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any omissions of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished Trustee in connection therewith; (eii) the existence form, validity, sufficiency, accuracy or non-existence genuineness of any Default documents (including without limitation any documents presented under the Letters of Credit), or Event of Defaultany statement therein or endorsement thereon, even if such documents, statements or endorsements should in fact prove to be in any or all respects invalid, insufficient, fraudulent, forged, inaccurate or untrue; (iii) the payment by the Agent against presentation of documents which do not comply with the terms of the Letters of Credit, including failure of any documents to bear any reference to or adequate reference to the Letters of Credit, or any other failure by the Trustee to comply fully with conditions required in order to effect a drawing under the Letters of Credit; (iv) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any of the Letters of Credit or the rights or benefit thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (v) errors, omissions, interruptions, losses or delays in transmission or delivery of any message by mail, cable, telegraph, telex, telephone or otherwise; (vi) any loss or delay in the transmission or otherwise of any document or draft required in order to make a drawing under the Letters of Credit; or (fvii) any other circumstances whatsoever in making or failing to make payment under any of the Letters of Credit; except only that the Company shall have a claim against the Agent, and the Agent shall be liable to the Company, to the extent, but only to the extent, of any direct, as opposed to consequential, damages suffered by the Company which the Company proves were caused by (A) the financial condition Agent's willful misconduct or gross negligence or (B) the Agent's failure to pay under any of the Letters of Credit after the presentation to it by the Trustee of a draft and certificate strictly complying with the terms and conditions of any Credit Party. of the Letters or Credit, unless the Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. Agent shall not be liable for any apportionment or distribution of payments made by it in good faith believes that it is prohibited by law from making such payment. In furtherance and if any such apportionment or distribution is subsequently determined not in limitation of the foregoing, the Agent may accept documents that appear on their face to have been made be in error the sole recourse order, without responsibility for further investigation, regardless of any Lender notice or information to whom payment was due but not made, the contrary; provided that if the Agent shall be receive written notification from both the Trustee and the Company that documents conforming to recover from other Lenders any payment in excess the terms of the amount to which they are determined Letters of Credit to be entitled (presented to the Agent are not to be honored, the Agent agrees that it will not honor such documents. Except for the Agent's obligations under the Letters of Credit, the Agent shall have no liability to the Company or any other person as a result of any reduction of the credit rating of the Agent or any deterioration in the Agent's financial condition. No reduction of the credit rating shall reduce or in any way diminish the obligations of the Company to the Agent under this Second Restated Credit Agreement, including without limitation the Company's obligation to pay Letter of Credit Fees to the Agent and such other Lenders hereby agree to return to such Lender reimburse the Agent for any such erroneous payments received by them)drawing under the Letters of Credit.

Liability of Agent. Neither Agent the Agent, the Issuing Bank, nor any of its their respective directors, officers, employees or agents, trustees, investment managers, servicers or employees shall be liable to any Lender as such for any action taken or not omitted to be taken by it in connection with the Financing Documentsany of them, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its for such party's own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directorsmisconduct, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made herein or the contents of any document delivered in connection with herewith, or be required to ascertain or to make any Financing Document or any borrowing hereunder; (b) inquiry concerning the performance or observance by any Credit Party of any of the terms, conditions, covenants or agreements specified contained in any Financing Loan Document; (c) . Neither the satisfaction Agent nor the Issuing Bank shall be responsible to the Lenders or the holders of any condition specified in any Financing Document; (d) the Notes for the due execution, genuineness, validity, effectivenessenforceability or effectiveness of this Amended Agreement, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby the Notes or any other Loan Documents or other instruments or agreements. Each of the Agent and the Issuing Bank may deem and treat the payee of any Note as the owner thereof for all purposes hereof until it shall have received from the payee of such Note notice, given as provided herein, of the transfer thereof in compliance with Section 9.04. The Agent and the Issuing Bank shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders and each subsequent holder of any Note. The Agent, the Issuing Bank and the Required Lenders shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) document believed by it in good faith to be genuine and correct and to have been signed or to be signed sent by the proper party person or partiespersons. Neither the Agent, the Issuing Bank nor any of their respective directors, officers, employees or agents, shall have any responsibility to any Credit Party on account of the failure of or delay in performance or breach by any Lender 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 any Credit Party of any of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith. The Agent and the Issuing Bank may execute any and all duties hereunder by or through agents or employees, shall be entitled to consult with legal counsel, independent public accountants and other experts selected by it with respect to all matters arising hereunder and shall not be liable for any apportionment action taken or distribution of payments made omitted to be taken in good faith by it in good faith and if any accordance with the advice of such apportionment counsel, accountants 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)experts.

Liability of Agent. As between the Company and the Agent, the Company assumes all risks of the acts or omissions of the Trustee with respect to the Trustee's use of the Letters of Credit. Neither the Agent nor any of its directors, officers, agents, trustees, investment managers, servicers officers or employees directors shall be liable to any Lender or responsible for: (i) the use which may be made of the Letters of Credit or for any action taken acts or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any omissions of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished Trustee in connection therewith; (eii) the existence form, validity, sufficiency, accuracy or non-existence genuineness of any Default documents (including without limitation any documents presented under the Letters of Credit), or Event of Defaultany statement therein or endorsement thereon, even if such documents, statements or endorsements should in fact prove to be in any or all respects invalid, insufficient, fraudulent, forged, inaccurate or untrue; (iii) the payment by the Agent against presentation of documents which do not comply with the terms of the Letters of Credit, including failure of any documents to bear any reference to or adequate reference to the Letters of Credit, or any other failure by the Trustee to comply fully with conditions required in order to effect a drawing under the Letters of Credit; (iv) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any of the Letters of Credit or the rights or benefit thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (v) errors, omissions, interruptions, losses or delays in transmission or delivery of any message by mail, cable, telegraph, telex, telephone or otherwise; (vi) any loss or delay in the transmission or otherwise of any document or draft required in order to make a drawing under the Letters of Credit; or (fvii) any other circumstances whatsoever in making or failing to make payment under any of the Letters of Credit; except only that the Company shall have a claim against the Agent, and the Agent shall be liable to the Company, to the extent, but only to the extent, of any direct, as opposed to consequential, damages suffered by the Company which the Company proves were caused by (A) the financial condition Agent's willful misconduct or gross negligence or (B) the Agent's failure to pay under any of the Letters of Credit after the presentation to it by the Trustee of a draft and certificate strictly complying with the terms and conditions of any Credit Party. of the Letters or Credit, unless the Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. Agent shall not be liable for any apportionment or distribution of payments made by it in good faith believes that it is prohibited by law from making such payment. In furtherance and if any such apportionment or distribution is subsequently determined not in limitation of the -38- 52 foregoing, the Agent may accept documents that appear on their face to have been made be in error the sole recourse order, without responsibility for further investigation, regardless of any Lender notice or information to whom payment was due but not made, the contrary; provided that if the Agent shall be receive written notification from both the Trustee and the Company that documents conforming to recover from other Lenders any payment in excess the terms of the amount to which they are determined Letters of Credit to be entitled (presented to the Agent are not to be honored, the Agent agrees that it will not honor such documents. Except for the Agent's obligations under the Letters of Credit, the Agent shall have no liability to the Company or any other person as a result of any reduction of the credit rating of the Agent or any deterioration in the Agent's financial condition. No reduction of the credit rating shall reduce or in any way diminish the obligations of the Company to the Agent under this Fourth Restated Credit Agreement, including without limitation the Company's obligation to pay Letter of Credit Fees to the Agent and such other Lenders hereby agree to return to such Lender reimburse the Agent for any such erroneous payments received by them)drawing under the Letters of Credit.

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Loan Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder hereunder, but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (ai) any statement, warranty or representation made in connection with any Financing Loan -52- Document or any borrowing hereunder; hereunder or the contents of any certificate, financial statement or other report or document delivered under or in connection with any Loan Document, (bii) the performance or observance of any of the covenants or agreements specified in any Financing Loan Document; , (ciii) the satisfaction of any condition specified in any Financing Loan Document; , (div) the validity, effectiveness, sufficiency or genuineness of any Financing Loan Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; , (ev) the existence or non-existence of any Default or Event of Default; or (fvi) the financial condition of any Credit PartyLoan Party or the value or the sufficiency of any Collateral. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed CHICAGO/#2321168.11 by the proper party or parties. 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).

Liability of Agent. (a) Neither the Agent nor any of its Affiliates or any of their respective directors, officers, agents, trustees, investment managers, servicers employees or employees advisors shall be liable for any action taken or omitted to be taken by it or them (i) at the direction of the Required Lenders (or such other percentage of Lenders as permitted or required hereunder) or (ii) in good faith under or in connection with this Agreement or any other Loan Document in the absence of its or their own gross negligence or willful misconduct. Without limiting the generality of the foregoing, the Agent (a) may treat the payee of any Note as the holder thereof until the Agent receives written notice of the assignment or transfer thereof signed by such payee and in form satisfactory to the Agent; (b) may consult with legal counsel (including counsel for the Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in reliance upon the advice of such counsel, accountants, or experts; (c) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any action taken statements, warranties, or not taken by it representations made in or in connection with the Financing Documents, except that Agent this Agreement; (d) shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or not have any duty to ascertain, ascertain or to inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) as to the performance or observance of any terms, covenants, or conditions of this Agreement on the part of the covenants Loan Parties (other than the payment of principal, interest and fees due hereunder), or agreements specified to inspect the property (including the books and records) of the Borrower; (e) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, perfection, sufficiency or value of this Agreement or the other Loan Documents or any other instrument or document furnished pursuant hereto or the value, sufficiency, creation, perfection or priority of any Lien in any Financing Documentcollateral security; (cf) shall be deemed to have no knowledge of any Default unless and until written notice thereof is given to the Agent by the Borrower or a Lender; (g) shall incur no liability under or in respect of this Agreement by acting upon any notice, consent, certificate or other instrument or writing (which may be sent by any telecommunication device capable of creating a written record (including electronic mail)) believed by it in good faith to be genuine and signed or sent by the proper party or parties and (h) the satisfaction of any condition specified set forth in any Financing Document; (d) the validity, effectiveness, sufficiency ARTICLE III or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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)elsewhere herein.

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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 72 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).

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).if

Liability of Agent. Neither Agent None of Agent, Term Loan Servicer nor any of its their directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent and Term Loan Servicer shall each be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent None of Agent, Term Loan Servicer nor any of its their directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the MidCap / Viewray / Credit, Security and Guaranty Agreement validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Neither Agent nor Term Loan Servicer shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. Neither Agent nor Term Loan Servicer 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 Erroneous Payments received by them).

Liability of Agent. Neither the Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender for any action taken or not omitted to be taken by it or them under or in connection with any Loan Documents in the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent absence of its or their own gross negligence or willful misconduct wilful misconduct. Without limitation of the generality of the foregoing, the Agent (1) may treat the payees of any Notes as the holder thereof until the Agent receives written notice of the assignment or transfer thereof signed by such payee and in form satisfactory to the discharge thereof as determined Agent; (2) may consult with legal counsel (including counsel for any Bank or the Borrower), independent public accountants and other experts selected by a final non-appealable judgment it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of a court of competent jurisdiction. Neither Agent nor such counsel, accountants or experts; (3) makes no warranty or representation to any of its directors, officers, agents, trustees, investment managers, servicers or employees Bank and shall not be responsible to any Bank for any statements, warranties or representations made in or in connection with any Loan Document; (4) shall not have any duty to ascertain, ascertain or to inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) as to the performance or observance of any of the terms, covenants or agreements specified in conditions of any Financing DocumentLoan Document on the part of the Borrower or the Guarantor or any other Person or to inspect the property (including the books and records) of the Borrower; (c5) shall not be responsible to any Bank for the satisfaction due execution, (other than its execution of any condition specified in any Financing applicable Loan Document; (d) the legality, validity, effectivenessenforceability, genuineness, perfection, sufficiency or genuineness value of any Financing Document, any Lien purported to be created or perfected thereby of the Loan Documents or any other instrument or writing document furnished in connection therewithpursuant thereto; (e6) the existence or non-existence shall not have any duty to provide notice of any Default action or Event of Default; or (f) the financial condition happening of any Credit Party. Agent event, to the Borrower, the Guarantor or any Bank, except as specifically set forth herein; and (7) shall not incur no liability under or in respect of any liability Loan Document by acting in reliance upon any notice, consent, certificate, statement, certificate or other instrument or writing (which may be a bank wireby telegram, facsimile cable or electronic transmission or similar writingtelex) believed by it to be genuine and signed or to be signed sent by the proper party or parties. 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).

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify verify: (aI) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (bII) the performance or observance of any of the covenants or agreements specified in any Financing Document; (cIII) the satisfaction of any condition specified in any Financing Document, except receipt of items required to be delivered to Agent; (dIV) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (eV) the existence or non-existence of any Default or Event of Default; or (fVI) the financial condition of any Credit Partymember of the Beverly Group. Agent shall not incur any liability by acting in reliance upon reliaxxx xxxn any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence negligence, bad faith or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing MidCap / Cerus / A&R Credit, Security and Guaranty Agreement (Term Loan) [***] = Certain Confidential Information Omitted hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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 Erroneous Payments received by them).

Liability of Agent. Neither the Agent nor any of its directorspartners, officers, agents, trustees, investment managers, servicers agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with this Agreement in the absence of its or their own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, the Agent (a) may treat the payee of any Note as the holder thereof until the Agent receives written notice of the assignment or transfer thereof signed by such payee, which notice must be in form satisfactory to the Agent; (b) may consult with legal counsel (including counsel for the Borrowers), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants, or experts; (c) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any action taken statements, warranties, or not taken by it representations made in or in connection with the Financing Documents, except that Agent this Agreement; (d) shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or not have any duty to ascertain, ascertain or to inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) as to the performance or observance of any of the covenants terms, covenants, or agreements specified in any Financing Documentconditions of this Agreement on the part of the Borrowers, or to inspect the property (including the books and records) of the Borrowers; (ce) shall not be responsible to any Lender for the satisfaction of any condition specified in any Financing Document; (d) the due execution, legality, validity, effectivenessenforceability, sufficiency genuineness, perfection, sufficiency, or genuineness value of any Financing Document, any Lien purported to be created or perfected thereby this Agreement or any other instrument or writing document furnished in connection therewithpursuant thereto; (e) the existence or non-existence of any Default or Event of Default; or and (f) the financial condition shall incur no liability under or in respect of any Credit Party. Agent shall not incur any liability this Agreement by acting in reliance upon any notice, consent, certificate, statement, monthly billing statement or other instrument or writing (which may be a bank wiresent by telegram, telex, or facsimile or electronic transmission or similar writingtransmission) believed by it to be genuine and signed or to be signed sent by the proper party or parties. 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).

Liability of Agent. Neither In the administration of the Loans and the custody of the Collateral, the Agent shall exercise the same standard of care as it exercises in connection with loans where it is the sole lender. Except as provided in the previous sentence of this Section, neither the Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with this Agreement or any other Loan Document in the absence of its or their own gross negligence or willful misconduct. Without limiting the foregoing, the Agent: (1) may treat the payee of any Note as the holder thereof until the Agent receives written notice of the assignment or transfer thereof signed by such payee and in form satisfactory to the Agent; (2) may consult with legal counsel (including counsel for the Borrower), independent public accountants, and other experts selected by the Agent and shall not be liable for any action taken or omitted to be taken in good faith by the Agent in accordance with the advice of such counsel, accountants, or experts; (3) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any action taken statements, warranties, or not taken by it representations made in or in connection with the Financing Documents, except that Agent this Agreement; (4) shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or not have any duty to ascertain, ascertain or to inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) as to the performance or observance of any of the covenants terms, covenants, or agreements specified in conditions of this Agreement on the part of the Borrower, or to inspect the property (including the books and records) of the Borrower, and any Financing Documentsuch inquiry or inspection shall not obligate the Agent to make any further inquiry or inspection; (c5) shall not be responsible to any Lender for the satisfaction of any condition specified in any Financing Document; (d) the due execution, legality, validity, effectivenessenforceability, sufficiency genuineness, perfection, sufficiency, or genuineness value of any Financing Document, any Lien purported to be created or perfected thereby this Agreement or any other instrument or writing document furnished in connection therewithpursuant thereto; (e6) the existence shall incur no liability under or non-existence in respect of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability this Agreement by acting in reliance upon any notice, consent, certificate, statement, or other instrument or writing (which may be a bank wireby telegram, telex, or facsimile or electronic transmission or similar writingtransmission) believed by it the Agent in good faith to be genuine and signed or to be signed sent by the proper party or parties. Agent parties and (7) shall be liable only for Lender's actual and consequential damages, and shall not be liable for any apportionment punitive, special or distribution other damages. Each Lender hereby indemnifies (which indemnity shall survive any termination of payments made this Agreement) and holds harmless the Agent, pro rata according to such Lender's Percentage, from and against any and all liabilities, obligations, losses, damages, claims, costs or expenses of any kind or nature whatsoever which may at any time be imposed on, incurred by, or asserted against, the Agent in any way relating to or arising out of this Agreement, the Notes and any other Loan Document, including reasonable attorneys' fees and expenses, and as to which the Agent is not reimbursed by it the Borrower; provided that (1) no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, claims, costs or expenses which are determined by a court of competent jurisdiction in good faith and if any such apportionment or distribution is subsequently determined a final proceeding to have been made resulted solely from the Agent's failure to exercise the same standard of care as it exercises in error connection with loans where it is the sole recourse lender, gross negligence or willful misconduct, and (2) any liability of a Lender to the Agent shall be only for actual or consequential damages, and shall exclude punitive, special or other damages. The Agent shall not be required to take any action hereunder, under the Notes or under any other Loan Document or to prosecute or defend any suit in respect of this Agreement, the Notes or any other Loan Document, unless the Agent is indemnified hereunder to its satisfaction. If any indemnity in favor of the Agent shall be or become, in the Agent's determination, inadequate, the Agent may call for additional indemnification from Lenders and cease to do the acts indemnified against hereunder until such additional indemnity is given. Without limitation of the foregoing, each Lender shall reimburse the Agent (to the extent not reimbursed by Borrower) promptly upon demand for its ratable share of any Lender to whom payment was due but not made, shall be to recover from other Lenders any payment in excess of out-of-pocket expenses (including reasonable counsel fees) incurred by 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).Agent in

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Portions of this Exhibit were omitted, as indicated by [***], and have been filed separately with the Secretary of the Commission pursuant to the Registrant’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither (a) The Agent nor shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (i) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing, (ii) 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 the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.09), and (iii) except as expressly set forth herein, 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 of its directors, officers, agents, trustees, investment managers, servicers Subsidiaries that is communicated to or employees obtained by the bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be liable with respect to its specific duties set forth hereunder but only to necessary under the extent circumstances as provided in Section 10.09) or in the absence of its own gross negligence or willful misconduct in misconduct. The Agent shall be deemed not to have knowledge of any Event of Default unless and until written notice thereof is given to the discharge thereof as determined Agent by the Borrower or a final non-appealable judgment of a court of competent jurisdiction. Neither Lender, and the Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall not be responsible for or have any duty to ascertain, ascertain or inquire into or verify (aA) any statement, warranty or representation made in or in connection with this Agreement, (B) the contents of any Financing Document certificate, report or any borrowing hereunder; other document delivered hereunder or in connection herewith, (bC) the performance or observance of any of the covenants covenants, agreements or agreements specified in other terms or conditions set forth herein, (D) the validity, enforceability, effectiveness or genuineness of this Agreement or any Financing Document; other agreement, instrument or document, or (cE) the satisfaction of any condition specified set forth in any Financing Document; (d) the validitySection 4 or elsewhere herein, effectiveness, sufficiency or genuineness other than to confirm receipt of any Financing Document, any Lien purported items expressly required to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) delivered to the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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)Agent.

Liability of Agent. Neither any Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender for any action taken or not taken by it in connection herewith (i) with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to consent or at the extent request of the Required Banks or (ii) in the absence of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdictionmisconduct. Neither any Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (ai) any statement, warranty or representation made in connection with this Agreement, any Financing other Loan Document or any Credit Event or any borrowing hereunder; (bii) the performance or observance of any of the covenants or agreements specified in any Financing Documentof the Borrower; (ciii) the satisfaction of any condition specified in any Financing DocumentSection 8, except receipt of items required to be delivered to such Agent; or (div) the validity, effectiveness, sufficiency genuineness, enforceability or genuineness collectability hereof or of any Financing Document, any Lien purported to be created or perfected thereby other Loan Document or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence and no Agent makes any representation of any Default kind or Event character with respect to any such matter mentioned in this sentence. Each Agent may execute any of Default; its duties under any of the Loan Documents by or (f) through employees, agents, and attorneys-in-fact and shall not be answerable to the financial condition Banks, the Borrower or any other Person for the default or misconduct of any Credit Partysuch agents or attorneys-in-fact selected with reasonable care. No Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, request or statement (whether written or oral) or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) document believed by it to be genuine or to be signed or sent by the proper party or parties. Each 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 may treat 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 Banks that are named herein as the holders of the amount Notes and the indebtedness contemplated herein unless and until such Agent receives notice of the assignment of the Note and the indebtedness held by a Bank hereunder pursuant to which they are determined to be entitled (and such other Lenders hereby agree to return to such Lender any such erroneous payments received an assignment contemplated by them)Section 14.12 hereof.

Liability of Agent. Neither Agent nor any of its directors, officers, agents, servicers, trustees, investment managers, servicers managers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, servicers, trustees, investment managers, servicers managers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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 Erroneous Payments received by them).. MidCap / Xtant / A&R Credit, Security and Guaranty Agreement (Revolving Loan)

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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 MidCap / HTG / Credit and Security Agreement (Term Loan) \\DC - 036639/000001 - 12092479 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).

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).. Midcap / Aterian / Credit Agreement DC - 036639/000052 - 10453208

Liability of Agent. Neither the Agent nor any of its directorspartners, ------------------ officers, agents, trustees, investment managers, servicers agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with this Agreement in the absence of its or their own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, Agent (a) may treat the payee of any Note as the holder thereof until Agent receives written notice of the assignment or transfer thereof signed by such payee, which notice must be in form satisfactory to Agent; (b) may consult with legal counsel (including counsel for Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants, or experts; (c) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any action taken statements, warranties, or not taken by it representations made in or in connection with the Financing Documents, except that Agent this Agreement; (d) shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or not have any duty to ascertain, ascertain or to inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) as to the performance or observance of any of the terms, covenants or agreements specified in any Financing Documentconditions of this Agreement on the part of Borrower, or to inspect the property (including the books and records) of Borrower; (ce) shall not be responsible to any Lender for the satisfaction of any condition specified in any Financing Document; (d) the due execution, legality, validity, effectivenessenforceability, sufficiency genuineness, perfection, sufficiency, or genuineness value of any Financing Document, any Lien purported to be created or perfected thereby this Agreement or any other instrument or writing document furnished in connection therewithpursuant thereto; (e) the existence or non-existence of any Default or Event of Default; or and (f) the financial condition shall incur no liability under or in respect of any Credit Party. Agent shall not incur any liability this Agreement by acting in reliance upon any notice, consent, certificate, statement, monthly billing statement or other instrument or writing (which may be a bank wiresent by telegram, telex, or facsimile or electronic transmission or similar writingtransmission) believed by it to be genuine and signed or to be signed sent by the proper party or parties. 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).

Liability of Agent. Neither Agent nor any NEITHER THE AGENT NOR ANY OTHER INDEMNIFIED PARTY SHALL BE LIABLE FOR ANY ACTION TAKEN OR OMITTED BY IT OR THEM HEREUNDER, OR IN CONNECTION HEREWITH, (i) with the consent or at the request of the Creditors, or (ii) in the absence of its directorsor their own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, officersthe Agent: (i) may treat the payee of any Note as the holder thereof until the Agent receives written notice of the assignment or transfer thereof signed by such payee and in form satisfactory to the Agent; (ii) may consult with legal counsel (including counsel for the Company), agents, trustees, investment managers, servicers or employees independent public accountants and other experts selected by it and shall not be liable to any Lender for any action taken or not omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (iii) makes no warranty or representation to any Creditor and shall not be responsible to any Creditor for any statements, warranties or representations made in or in connection with the Financing Documentsthis Agreement, except that Agent any Security Document or any Note; (iv) shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or not have any duty to ascertain, ascertain or to inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) as to the performance or observance of or any of the terms, covenants or agreements specified in conditions of this Agreement, the Security Documents or any Financing DocumentNote, or to inspect the property (including the books and records) of the Company or any Subsidiary; (cv) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported shall not be deemed to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence have notice of any Default or Event of DefaultDefault absent actual knowledge thereof by a Responsible Officer of the Agent; or (fvi) the financial condition of any Credit Party. Agent shall not be responsible to any Creditor for the due execution, legality, validity, enforceability or genuineness of this Agreement, any Security Document or any Note, or any other instrument or document furnished pursuant thereto; and (vii) shall incur no liability under or in respect of the Agreement, any liability Security Document or any Note by acting in reliance upon any noticenotice or consent (whether oral or written and whether by telephone, consenttelegram, certificatecable, statementtelex or facsimile), certificate or other instrument or writing (which may be a bank wireby telegram, facsimile cable, telex or electronic transmission or similar writingfacsimile) believed by it to be genuine and communicated, signed or to be signed sent by the proper party person or parties. 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)persons.

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither the Agent, nor any of its directors, officers, agents or employees, shall be liable for any action taken or not taken by the Agent in connection with the Note Documents (a) with the consent or at the request of the Required Purchasers or (b) in the absence of the gross negligence or willful misconduct of the Agent. The Agent shall not be compelled to do any act under the Note Documents or to take any action toward the execution or enforcement of the powers created by the Note Documents, or to prosecute or defend any suit in respect of the Note Documents, (x) if it in good faith believes that such action is unlawful or would subject it to material liability or (y) unless indemnified to its reasonable satisfaction against any and all loss, cost, liability and expense it may incur in connection therewith. Neither the Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (ai) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; the Note Documents, (bii) the performance or observance of any of the covenants or agreements specified in of any Financing Document; Company Party, (ciii) the satisfaction of any condition specified in any Financing Document; (d) the legality, validity, effectiveness, enforceability, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby the Note Documents or any other instrument or writing furnished in connection therewith; therewith or (eiv) the existence or non-existence receipt by any other Purchaser of any Default or Event of Default; or (f) certificates required to be delivered by the financial condition of any Credit PartyCompany hereunder. The Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission telex or similar writing) reasonably believed by it to be genuine or to be signed by the proper party or parties. The Agent makes no representation as to, and shall have no responsibility to ascertain, inquire into or verify, the value or condition of the Collateral or any part thereof or as to the title of the Company or any other party to the Collateral or the validity, sufficiency or enforceability thereof or the security afforded thereby. The Agent shall not be liable not, under any circumstances or any event whatsoever, have any liability for any apportionment error or distribution omission or delivery of payments made by it in good faith and if any such apportionment or distribution is subsequently determined to have been kind made in error the sole recourse settlement, collection or payment 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 Collateral or of any instrument received in payment therefor or for any damage resulting therefrom other Lenders hereby agree to return to such Lender any such erroneous payments received by them)than as a result of the Agent's gross negligence or willful misconduct.

Liability of Agent. Neither the Agent, nor any of its ------------------ directors, officers, agents or employees, shall be liable for any action taken or not taken by the Agent in connection with the Note Documents (a) with the consent or at the request of the Required Purchasers or (b) in the absence of the gross negligence or willful misconduct of the Agent. The Agent shall not be compelled to do any act under the Note Documents or to take any action toward the execution or enforcement of the powers created by the Note Documents, or to prosecute or defend any suit in respect of the Note Documents, (x) if it in good faith believes that such action is unlawful or would subject it to material liability or (y) unless indemnified to its reasonable satisfaction against any and all loss, cost, liability and expense it may incur in connection therewith. Neither the Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (ai) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; the Note Documents, (bii) the performance or observance of any of the covenants or agreements specified in of any Financing Document; Company Party, (ciii) the satisfaction of any condition specified in any Financing Document; (d) the legality, validity, effectiveness, enforceability, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby the Note Documents or any other instrument or writing furnished in connection therewith; therewith or (eiv) the existence or non-existence receipt by any other Purchaser of any Default or Event of Default; or (f) certificates required to be delivered by the financial condition of any Credit PartyCompany hereunder. The Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission telex or similar writing) reasonably believed by it to be genuine or to be signed by the proper party or parties. The Agent makes no representation as to, and shall have no responsibility to ascertain, inquire into or verify, the value or condition of the Collateral or any part thereof or as to the title of the Company or any other party to the Collateral or the validity, sufficiency or enforceability thereof or the security afforded thereby. The Agent shall not be liable not, under any circumstances or any event whatsoever, have any liability for any apportionment error or distribution omission or delivery of payments made by it in good faith and if any such apportionment or distribution is subsequently determined to have been kind made in error the sole recourse settlement, collection or payment 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 Collateral or of any instrument received in payment therefor or for any damage resulting therefrom other Lenders hereby agree to return to such Lender any such erroneous payments received by them)than as a result of the Agent's gross negligence or willful misconduct.

Liability of Agent. Neither Agent None of Agent, Term Loan Servicer nor any of its their directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent and Term Loan Servicer shall each be liable with respect to its specific duties set forth hereunder MidCap / Apyx Medical / Credit, Security and Guaranty Agreement but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent None of Agent, Term Loan Servicer nor any of its their directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Neither Agent nor Term Loan Servicer shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. Neither Agent nor Term Loan Servicer 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 Erroneous Payments received by them).

Liability of Agent. Neither Agent nor any of its directors, officers, agents, subagents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, subagents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Loan Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (ai) any statement, warranty or representation made in connection with any Financing Loan Document or any borrowing hereunder; (bii) the performance or observance of any of the covenants or agreements specified in any Financing Loan Document; (ciii) the satisfaction of any condition specified in any Financing Loan Document, except receipt of items required to be delivered to Agent; (div) the validity, effectiveness, sufficiency or genuineness of any Financing Loan Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (ev) the existence or non-existence of any Default or Event of Default; or (fvi) the financial condition of any Credit Loan Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither the Administrative Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender Bank for any action taken or not taken by it in connection herewith (i) with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to consent or at the extent request of the Required Banks or the Required Joint Lead Arrangers or (ii) in the absence of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the Company or a Bank stating that a Default or Event of Default has occurred and specifying the nature thereof. Neither the Administrative Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible to any Bank for or have any duty to any Bank to ascertain, inquire into or verify (ai) any statement, warranty or representation made in connection with any Financing Document this Agreement or any borrowing hereunderhereunder or the issuance, amendment or extension of any Letter of Credit; (bii) the performance or observance of any of the covenants or agreements specified in of any Financing DocumentObligor; (ciii) the satisfaction of any condition specified in any Financing DocumentArticle III, except receipt of items required to be delivered to the Administrative Agent; (div) the validity, effectiveness, sufficiency effectiveness or genuineness of any Financing Documentthis Agreement, any Lien purported to be created or perfected thereby other Credit Document or any other instrument or writing furnished in connection therewithherewith; (ev) the existence or non-possible existence of any Default or Event of Default; or (fvi) the financial condition of the Company or any Credit Partyof its Subsidiaries; or (vii) the contents of any certificate, report or other document delivered hereunder or in connection herewith. The Administrative Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it in good faith to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. The Agent shall have no duties or responsibilities except those expressly set forth in this Agreement. Neither the Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender for any action taken or not omitted to be taken by it or them under or in connection with this Agreement as Agent in the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent absence of its or their own gross negligence or willful misconduct misconduct. Without limiting the foregoing, the Agent: (A) may consult with legal counsel (including counsel for the Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the discharge thereof as determined by a final nonadvice of such counsel, accountants or experts; (B) makes no warranty or representation to any Co-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees Lender and shall not be responsible to any Co-Lender for any statements, warranties or representations made in or in connection with this Agreement; (C) shall not have any duty to ascertain, ascertain or to inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) as to the performance or observance of any of the covenants terms, covenants, or agreements specified in any Financing Documentconditions of this Agreement on the apart of the Borrower, or to inspect the property (including the books and records) of the Borrower; (cD) shall not be responsible to any Co-Lender for the satisfaction of any condition specified in any Financing Document; (d) the due execution, legality, validity, effectivenessenforceability, sufficiency genuineness, perfection, sufficiency, or genuineness value of any Financing Document, any Lien purported to be created or perfected thereby this Agreement or any other instrument or writing document furnished pursuant thereto; and (E) shall incur no liability under or in connection therewith; (e) the existence or non-existence respect of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability this Agreement by acting in reliance upon any notice, consent, certificate, statement, certificate or other instrument or writing (which may be a bank wireby telegram, telex, or facsimile or electronic transmission or similar writingtransmission) believed by it to be genuine and signed or to be signed sent by the proper party or parties. Without limiting the foregoing, the Agent shall not be liable for have no obligation whatsoever to any apportionment of the other Co-Lenders or distribution of payments made to any other Person to assure that the Collateral exists or is owned by it in good faith and if any such apportionment the Borrower or distribution is subsequently determined cared for, protected or insured or that the Liens granted to the Agent herein or pursuant hereto have been made in error the sole recourse of properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any Lender particular priority, or to whom payment was due but not madeexercise or continue exercising, shall be to recover from other Lenders any payment in excess of the amount rights, authorities and powers granted or available to which they are determined to be entitled (the Agent in this Agreement, it being understood and such other Lenders hereby agree to return to such Lender agreed that in respect of the Collateral, or any such erroneous payments received by them)act, omission or event related thereto, the Agent may act in any manner it may deem appropriate, in its sole discretion, given the Agent's own interest in the Collateral as one of the Co-Lenders.

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any 86 notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify verify: (ai) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (bii) the performance or observance of any of the covenants or agreements specified in any Financing Document; (ciii) the satisfaction of any condition specified in any Financing Document, except receipt of items required to be delivered to Agent; (div) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (ev) the existence or non-existence of any Default or Event of Default; or (fvi) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected enforceable thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither the Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees Related Parties shall be liable to any Lender for any action taken or not taken by it in connection herewith (a) with the Financing Documentsconsent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, except that or as the Agent shall believe in good faith to be liable with respect to its specific duties set forth hereunder but only to necessary, under the extent circumstances as provided in the Loan Documents) or (b) in the absence of its own gross negligence or willful misconduct in the discharge thereof as (such absence to be presumed unless otherwise determined by a final non-appealable judgment of a court of competent jurisdictionjurisdiction by a final and non-appealable judgment). Neither the Agent nor any of its directorsRelated Parties shall be deemed to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Agent by the Company or any Lender, officers, agents, trustees, investment managers, servicers or employees and neither the Agent nor any of its Related Parties shall be responsible for or have any duty to ascertain, inquire into or verify (ai) any statement, warranty or representation made in connection with any Financing Loan Document or any borrowing hereunder, or the contents of any certificate, report or other document delivered thereunder or in connection therewith; (bii) the performance or observance of any of the covenants or agreements specified in of the Company or any Financing DocumentLender; (ciii) the satisfaction of any condition specified in any Financing DocumentArticle IV, except receipt of items required to be delivered to the Agent; or (div) the sufficiency, validity, effectivenessenforceability, sufficiency effectiveness or genuineness of any Financing Document, any Lien purported to be created or perfected thereby Loan Document or any other instrument or writing furnished in connection therewith; (e) herewith. Without limiting the existence or non-existence of foregoing, the Agent shall have no obligation to take any Default or Event of Default; or (f) the financial condition of any Credit Partyaction under Section 5.06. The Agent shall be entitled to rely, and shall not incur any liability by acting in reliance for relying, upon any notice, consentrequest, certificate, consent, statement, instrument, document or other writing (which may be a bank wireincluding any electronic message, facsimile Internet or electronic transmission intranet website posting or similar writingother distribution) believed by it to be genuine and to have been signed, sent or to be signed otherwise authenticated by the proper party Person (whether or partiesnot such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof). The Agent also shall be entitled to rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be liable for any apportionment or distribution of payments made by it the proper Person (whether or not such Person in good faith fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof), and if may act upon any such apportionment or distribution is subsequently determined statement prior to have been made in error the sole recourse receipt 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)written confirmation thereof.

Liability of Agent. Neither Agent nor any None of its the Agent, the Collateral Agent, their respective affiliates and their and their affiliates' respective directors, officers, agents, trustees, investment managers, servicers or agents and employees shall be liable to any Lender for any action taken or not taken by it in connection herewith (i) with the Financing consent or at the request of the Required Lenders (or such different number of Lenders (and Lenders under the Revolving Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to where applicable) as any provision hereof or of any Loan Document expressly requires for such consent or request) or (ii) in 765748.1 10/9/98 7:17p 55 the extent absence of its own gross negligence or willful misconduct in misconduct. None of the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its Agent, the Collateral Agent, their respective affiliates and their and their affiliates' directors, officers, agents, trustees, investment managers, servicers or agents and employees shall be responsible for or have any duty to ascertain, inquire into or verify (aw) any statement, warranty or representation made in connection with any Financing Document the Loan Documents or any borrowing hereunder; (bx) the performance or observance of any of the covenants or agreements specified in of any Financing DocumentObligor; (cy) the satisfaction of any condition specified in any Financing DocumentArticle 3, except receipt of items required to be delivered to the Agent or the Collateral Agent; or (dz) the validity, effectiveness, sufficiency effectiveness or genuineness of any Financing Document, any Lien purported to be created or perfected thereby the Loan Documents or any other instrument or writing furnished in connection therewith; (e) herewith. Neither the existence or non-existence of any Default or Event of Default; or (f) Agent nor the financial condition of any Credit Party. Collateral Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, statement or other writing (which may be a bank wire, telex, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. Without limiting the generality of the foregoing, the use of the term "agent" in this Agreement or any other Loan Document with reference to the Agent shall or the Collateral Agent is not be liable for intended to connote any apportionment fiduciary or distribution of payments made by it in good faith and if any such apportionment other implied (or distribution is subsequently determined to have been made in error the sole recourse express) obligations arising under agency doctrine of any Lender applicable law. Instead, such term is used merely as a matter of market custom and is intended 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)create or reflect only an administrative relationship between independent contracting parties.

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender for any action taken or not omitted to be taken by it or them under or in connection with this Agreement in the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent absence of its or their own gross negligence or willful misconduct misconduct. Without limitation of the generality of the foregoing, Agent (a) may treat the payee of any Note as the holder thereof until Agent receives written notice of the assignment or transfer thereof signed by such payee and in form satisfactory to Agent; (b) may consult with legal counsel (including counsel for the discharge thereof as determined Borrowers), independent public accountants and other experts selected by a final non-appealable judgment it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of a court of competent jurisdiction. Neither Agent nor any of its directorssuch counsel, officersaccountants, agents, trustees, investment managers, servicers or employees experts; (c) makes no warranty or representation to the Lenders and shall not be responsible to the Lenders for any statements, warranties, or representations made in or in connection with this Agreement; (d) shall not have any duty to ascertain, ascertain or to inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) as to the performance or observance of any of the covenants terms, covenants, or agreements specified in any Financing Documentconditions of this Agreement on the part of the Borrowers, or to inspect the property (including the books and records) of the Borrowers; (ce) shall not be responsible to the satisfaction of any condition specified in any Financing Document; (d) Lenders for the due execution, legality, validity, effectivenessenforceability, sufficiency genuineness, perfection, sufficiency, or genuineness value of any Financing Document, any Lien purported to be created or perfected thereby this Agreement or any other instrument or writing document furnished in connection therewithpursuant thereto; (e) the existence or non-existence of any Default or Event of Default; or and (f) the financial condition shall incur no liability under or in respect of any Credit Party. Agent shall not incur any liability this Agreement by acting in reliance upon any notice, consent, certificate, statement, or other instrument or writing (which may be a bank wiresent by telegram, telex, or facsimile or electronic transmission or similar writingtransmission) believed by it to be genuine and signed or to be signed sent by the proper party or parties. -45- Agent shall not be liable for fully justified in failing or refusing to take any apportionment action under this Agreement or distribution any other Loan Document unless it shall first receive such advice or concurrence of payments made the Required Lenders as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it in good faith and if by reason of taking or continuing to take any such apportionment or distribution is subsequently determined to have been made in error action. In all cases the sole recourse of any Lender to whom payment was due but not made, Agent shall be to recover fully protected in acting, or in refraining from acting, under this Agreement and the Notes and the other Lenders any payment Loan Documents in excess accordance with a request of the amount to which they are determined to be entitled (Required Lenders, and such other request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders hereby agree to return to such Lender any such erroneous payments received by them).and all future holders of the Notes. Section 9.03

Liability of Agent. Neither the Administrative Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender Bank for any action taken or not taken by it in connection herewith (i) with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to consent or at the extent request of the Required Banks or (ii) in the absence of its own gross negligence or willful misconduct in misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the discharge thereof as determined Administrative Agent by an Account Party or a final non-appealable judgment of a court of competent jurisdictionBank. Neither the Administrative Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible to any Bank for or have any duty to any Bank to ascertain, inquire into or verify (ai) any statement, warranty or representation made in connection with any Financing Document this Agreement or any borrowing hereunderhereunder or the issuance, amendment, renewal or extension of any Letter of Credit; (bii) the performance or observance of any of the covenants or agreements specified in of any Financing DocumentAccount Party; (ciii) the satisfaction of any condition specified in any Financing DocumentArticle III, except receipt of items required to be delivered to the Administrative Agent; (div) the validity, effectiveness, sufficiency effectiveness or genuineness of any Financing Documentthis Agreement, any Lien purported to be created or perfected thereby other Credit Document or any other instrument or writing furnished in connection therewithherewith; (ev) the existence or non-possible existence of any Default or Event of Default; or (fvi) the financial condition of any Credit Account Party or any Account Party's Subsidiaries; or (vii) the contents of any certificate, report or other document delivered hereunder or in connection herewith. The Administrative Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission telex or similar writing) believed by it in good faith to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither the Administrative Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender Bank for any action taken or not taken by it in connection herewith (i) with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to consent or at the extent request of the Required Banks or (ii) in the absence of its own gross negligence or willful misconduct in misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the discharge thereof as determined Administrative Agent by an Account Party or a final non-appealable judgment of a court of competent jurisdictionBank. Neither the Administrative Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible to any Bank for or have any duty to any Bank to ascertain, inquire into or verify (ai) any statement, warranty or representation made in connection with any Financing Document this Agreement or any borrowing hereunderhereunder or the issuance, amendment, renewal or extension of any Letter of Credit; (bii) the performance or observance of any of the covenants or agreements specified in of any Financing DocumentAccount Party; (ciii) the satisfaction of any condition specified in any Financing DocumentArticle III, except receipt of items required to be delivered to the Administrative Agent; (div) the validity, effectiveness, sufficiency effectiveness or genuineness of any Financing Documentthis Agreement, any Lien purported to be created other Credit Document or perfected thereby or Credit Agreement any other instrument or writing furnished in connection therewithherewith; (ev) the existence or non-possible existence of any Default or Event of Default; or (fvi) the financial condition of any Credit Account Party or any Account Party's Subsidiaries; or (vii) the contents of any certificate, report or other document delivered hereunder or in connection herewith. The Administrative Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission telex or similar writing) believed by it in good faith to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither Agent nor any None of its the Agent, the Collateral Agent, their respective affiliates and their and their affiliates' respective directors, officers, agents, trustees, investment managers, servicers or agents and employees shall be liable to any Lender for any action taken or not taken by it in connection herewith (a) with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to consent or at the extent request of the Required Lenders (or such different number of Lenders as any provision hereof or of any Loan Document expressly requires for such consent or request) or (b) in the absence of its own gross negligence or willful misconduct but in no event shall the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent, the Collateral Agent nor any of its or their respective affiliates and their and their affiliates' respective directors, officers, agentsagents and employees be liable for punitive, trusteesexemplary or consequential damages. None of the Agent, investment managersthe Collateral Agent, servicers or their respective affiliates and their and their affiliates' directors, officers, agents and employees shall be responsible for or have any duty to ascertain, inquire into or verify (aw) any statement, warranty or representation made in connection with any Financing Document the Loan Documents or any borrowing hereunder; (bx) the performance or observance of any of the covenants or agreements specified in of any Financing DocumentObligor; (cy) the satisfaction of any condition specified in any Financing DocumentArticle 3, except receipt of items required to be delivered to the Agent or the Collateral Agent; or (dz) the validity, effectiveness, sufficiency effectiveness or genuineness of any Financing Document, any Lien purported to be created or perfected thereby the Loan Documents or any other instrument or writing furnished in connection therewith; (e) herewith. Neither the existence or non-existence of any Default or Event of Default; or (f) Agent nor the financial condition of any Credit Party. Collateral Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, statement or other writing (which may be a bank wire, telex, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. Without limiting the generality of the foregoing, the use of the term "agent" in this Agreement or any other Loan Document with reference to the Agent shall or the Collateral Agent is not be liable for intended to connote any apportionment fiduciary or distribution of payments made by it in good faith and if any such apportionment other implied (or distribution is subsequently determined to have been made in error the sole recourse express) obligations arising under agency doctrine of any Lender applicable law. Instead, such term is used merely as a matter of market custom and is intended 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)create or reflect only an administrative relationship between independent contracting parties.

Liability of Agent. Neither the Agent nor any of its affiliates nor any of their respective directors, officers, agents, trustees, investment managers, servicers agents or employees shall be (x) deemed to have knowledge of any Default unless and until written notice thereof is given to the Agent by the Borrower or a Lender or (y) liable to any Lender for any action taken or not taken by it in connection herewith (a) with the Financing Documentsconsent or at the request of the Required Lenders (or, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to when expressly required hereby, all or a different proportion of the extent Lenders) or (b) in the absence of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdictionmisconduct. Neither the Agent nor any of its affiliates nor any of their respective directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (ai) any statement, warranty or representation made in connection with any Financing Document this Agreement or any borrowing hereunder; (bii) the performance or observance of any of the covenants or agreements specified in any Financing Documentof the Borrower; (ciii) the satisfaction of any condition specified in any Financing DocumentArticle 3, except receipt of items required to be delivered to the Agent; or (div) the validity, effectiveness, sufficiency effectiveness or genuineness of any Financing Documentthis Agreement, any Lien purported to be created or perfected thereby the Notes or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Partyherewith. The Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. Without limiting the generality of the foregoing, the use of the term “agent” in 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 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. Except as expressly set forth herein, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any apportionment information relating to the Borrower or distribution any of payments made its Subsidiaries that is communicated to or obtained by it the bank serving as the Agent or any of its Affiliates 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)capacity.

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing 257619867 v8 Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, 87 servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. (a) The Agent, when acting on behalf of the Credit Parties, may execute any of its duties under this Agreement by or through any of its officers, agents and employees, and neither the Agent nor its directors, officers, agents or employees shall be liable to any other Credit Party for any action taken or omitted to be taken in good faith, or be responsible to any other Credit Party for the consequences of any oversight or error of judgment, or for any loss, except to the extent of any liability imposed by law by reason of the Agent's own gross negligence or willful misconduct. Neither the Agent or its directors, officers, agents and employees shall in any event be liable to any other Credit Party for any action taken or omitted to be taken by it pursuant to instructions received by it from the Required Lenders or in reliance upon the advice of counsel selected by it. Without limiting the foregoing, neither the Agent nor any of its directors, officers, agentsemployees, trustees, investment managers, servicers or employees agents shall be liable be: (i) responsible to any Lender other Credit Party for the due execution, validity, genuineness, effectiveness, sufficiency, or enforceability of, or for any action taken or not taken by it in connection with the Financing Documentsrecital, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with in, this Agreement, any Financing other Loan Document or any borrowing hereunderrelated agreement, document or order; (bii) required to ascertain or to make any inquiry concerning the performance or observance by any Loan Party of any of the covenants terms, conditions, covenants, or agreements specified in of this Agreement or any Financing Documentof the Loan Documents; (ciii) responsible to any other Credit Party for the satisfaction state or condition of any condition specified properties of the Loan Parties or any other obligor hereunder constituting Collateral for the Obligations or any information contained in any Financing Documentthe books or records of the Loan Parties; (div) responsible to any other Credit Party for the validity, effectivenessenforceability, sufficiency collectibility, effectiveness or genuineness of any Financing Document, any Lien purported to be created or perfected thereby this Agreement or any other Loan Document or any other certificate, document or instrument or writing furnished in connection therewith; or (ev) responsible to any other Credit Party for the existence validity, priority or non-existence perfection of any Default Lien securing or Event of Default; purporting to secure the Obligations or (f) for the financial condition value or sufficiency of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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)Collateral.

Liability of Agent. Neither the Administrative Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender Bank for any action taken or not taken by it in connection herewith (i) with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to consent or at the extent request of the Required Banks or (ii) in the absence of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. 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 an Account Party or a Bank. Neither the Administrative Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible to any Bank for or have any duty to any Bank to ascertain, inquire into or verify (ai) any statement, warranty or representation made in connection with any Financing Document this Agreement or any borrowing hereunderhereunder or the issuance, amendment, or extension of any Letter of Credit; (bii) the performance or observance of any of the covenants or agreements specified in of any Financing DocumentAccount Party; (ciii) the satisfaction of any condition specified in any Financing DocumentArticle III, except receipt of items required to be delivered to the Administrative Agent; (div) the validity, effectiveness, sufficiency effectiveness or genuineness of any Financing Documentthis Agreement, any Lien purported to be created or perfected thereby other Credit Document or any other instrument or writing furnished in connection therewithherewith; (ev) the existence or non-possible existence of any Default or Event of Default; or (fvi) the financial condition of any Credit Account Party or any Account Party’s Subsidiaries; or (vii) the contents of any certificate, report or other document delivered hereunder or in connection herewith. The Administrative Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it in good faith to be genuine or to be signed by the proper party or parties. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Bank or Fronting Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Bank or Fronting Issuing Bank (to the extent, in the case of a documentary condition, that such Bank or Fronting Issuing Bank received the applicable document) unless the Administrative Agent shall have received notice to the contrary from such Bank or Fronting Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent (i) shall have no fiduciary or other implied duties to the Banks, (ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Credit Documents that the Administrative Agent is required to exercise as directed in writing by the Required Banks (or such other number or percentage of the Banks as shall be expressly provided for herein or in the other Credit Documents); provided, that the Administrative Agent shall not be required to take any action that is contrary to any Credit Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Banks in violation of any Debtor Relief Law; and (iii) shall not, except as expressly set forth herein and in the other Credit Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any apportionment information relating to an Account Party or distribution any of payments made its Affiliates that is communicated to or obtained by it the Person serving as the Administrative Agent or any of its Affiliates 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)capacity.

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any DIP Lender for any action taken or not taken by it in connection with the Financing DIP Loan Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (ai) any statement, warranty or representation made in connection with any Financing DIP Loan Document or any borrowing hereunder; (bii) the performance or observance of any of the covenants or agreements specified in any Financing DIP Loan Document; (ciii) the satisfaction of any condition specified in any Financing DIP Loan Document, except receipt of items required to be delivered to Agent; (div) the validity, effectiveness, sufficiency or genuineness of any Financing DIP Loan Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (ev) the existence or non-existence of any Default or Event of Default; or (fvi) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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 DIP Lender to whom payment was due but not made, shall be to recover from other DIP Lenders any payment in excess of the amount to which they are determined to be entitled (and such other DIP Lenders hereby agree to return to such DIP Lender any such erroneous payments received by them).

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).. 77 SAN_FRANCISCO/#11685.11

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic MidCap / Aptevo Therapeutics / Amended and Restated Credit and Security Agreement \\DC - 036639/000031 - 12505399 transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither (a) The Agent nor shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (i)the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing, (ii)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 the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.09); provided that the Agent shall not be required to take any action that, in its opinion or the opinion of its legal counsel, may expose the Agent to liability or that is contrary to this Agreement or applicable law, including, for the avoidance of doubt, any action that may be in violation of the automatic stay under any debtor relief law, and (iii)except as expressly set forth herein, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings or any of its directors, officers, agents, trustees, investment managers, servicers Subsidiaries that is communicated to or employees obtained by the bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be liable with respect to its specific duties set forth hereunder but only to necessary under the extent circumstances as provided in Section 10.09) or in the absence of its own gross negligence or willful misconduct in misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until notice thereof is given to the discharge thereof as determined Agent by the Borrower or a final non-appealable judgment of a court of competent jurisdiction. Neither Lender, and the Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall not be responsible for or have any duty to ascertain, ascertain or inquire into or verify (a) any A)any statement, warranty or representation made in or in connection with this Agreement, (B)the contents of any Financing Document certificate, report or any borrowing hereunder; other document delivered hereunder or in connection herewith, (b) the C)the performance or observance of any of the covenants covenants, agreements or agreements specified in other terms or conditions set forth herein, (D)the validity, enforceability, effectiveness or genuineness of this Agreement or any Financing Document; other agreement, instrument or document, or (c) the E)the satisfaction of any condition specified set forth in any Financing Document; (d) the validityArticle 4 or elsewhere herein, effectiveness, sufficiency or genuineness other than to confirm receipt of any Financing Document, any Lien purported items expressly required to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) delivered to the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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)Agent.

Liability of Agent. Neither Agent nor any of its directors, officers, -------------------- agents, trustees, investment managers, servicers or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with this Agreement or any other Loan Document in the absence of its or their own gross negligence or willful misconduct. Without limiting the foregoing, Agent: (1) may treat the payee of any Note as the holder thereof until the Agent receives written notice of the assignment or transfer thereof signed by such payee and in form satisfactory to Agent; (2) may consult with legal counsel (including counsel for Borrower), independent public accountants, and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants, or experts; (3) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any action taken statements, warranties, or not taken by it representations made in or in connection with the Financing Documents, except that Agent this Agreement; (4) shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or not have any duty to ascertain, ascertain or to inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) as to the performance or observance of any of the covenants terms, covenants, or agreements specified in conditions of this Agreement on the part of Borrower, or to inspect the property (including the books and records) of Borrower, and any Financing Documentsuch inquiry or inspection shall not obligate the Agent to make any further inquiry or inspection; (c5) shall not be responsible to any Lender for the satisfaction of any condition specified in any Financing Document; (d) the due execution, legality, validity, effectivenessenforceability, sufficiency genuineness, perfection, sufficiency, or genuineness value of any Financing Document, any Lien purported to be created or perfected thereby this Agreement or any other instrument or writing document furnished pursuant thereto: and (6) shall incur no liability under or in connection therewith; (e) the existence or non-existence respect of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability this Agreement by acting in reliance upon any notice, consent, certificate, statement, or other instrument or writing (which may be a bank wireby telegram, telex, or facsimile or electronic transmission or similar writingtransmission) believed by it to be genuine and signed or to be signed sent by the proper party or parties. Each Lender hereby indemnifies (which indemnity shall survive any termination of this Agreement) and holds harmless the Agent, pro rata according to such Lender's Percentage, -------- from and against any and all liabilities, obligations, losses, damages, claims, costs or expenses of any kind or nature whatsoever which may at any time be imposed on, incurred by, or asserted against, Agent in any way relating to or arising out of this Agreement, the Notes and any other Loan Document, including reasonable attorneys' fees and expenses, and as to which the Agent is not reimbursed by the Borrower; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, claims, costs or expenses which are determined by a court of competent jurisdiction in a final proceeding to have resulted solely from Agent's gross negligence or willful misconduct. Agent shall not be liable required to take any action hereunder, under the Notes or under any other Loan Document or to prosecute or defend any suit in respect of this Agreement, the Notes or any other Loan Document, unless Agent is indemnified hereunder to its satisfaction. If any indemnity in favor of Agent shall be or become, in Agent's determination, inadequate, Agent may call for any apportionment or distribution additional indemnification from Lenders and cease to do the acts indemnified against hereunder until such additional indemnity is given. Without limitation of payments made the foregoing, each Lender shall to reimburse Agent (to the extent not reimbursed by it in good faith and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse Borrower) promptly upon demand for its ratable share of any Lender to whom payment was due but not madeout-of-pocket expenses (including reasonable counsel fees) incurred by Agent in connection with the preparation, shall be to recover from other Lenders any payment administration, or enforcement of, or legal advice in excess respect 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)rights or responsibilities under this Agreement.

Liability of Agent. Neither (a) The Agent nor shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (i) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing, (ii) 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 the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.09); provided that the Agent shall not be required to take any action that, in its opinion or the opinion of its legal counsel, may expose the Agent to liability or that is contrary to this Agreement or applicable law, including, for the avoidance of doubt, any action that may be in violation of the automatic stay under any debtor relief law, and (iii) except as expressly set forth herein, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings or any of its directors, officers, agents, trustees, investment managers, servicers Subsidiaries that is communicated to or employees obtained by the bank serving as Agent or any of its Affiliates in any capacity. The Agent shall not be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be liable with respect to its specific duties set forth hereunder but only to necessary under the extent circumstances as provided in Section 10.09) or in the absence of its own gross negligence or willful misconduct in misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until notice thereof is given to the discharge thereof as determined Agent by the Borrower or a final non-appealable judgment of a court of competent jurisdiction. Neither Lender, and the Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall not be responsible for or have any duty to ascertain, ascertain or inquire into or verify (aA) any statement, warranty or representation made in or in connection with this Agreement, (B) the contents of any Financing Document certificate, report or any borrowing hereunder; other document delivered hereunder or in connection herewith, (bC) the performance or observance of any of the covenants covenants, agreements or agreements specified in other terms or conditions set forth herein, (D) the validity, enforceability, effectiveness or genuineness of this Agreement or any Financing Document; other agreement, instrument or document, or (cE) the satisfaction of any condition specified set forth in any Financing Document; (d) the validityArticle 4 or elsewhere herein, effectiveness, sufficiency or genuineness other than to confirm receipt of any Financing Document, any Lien purported items expressly required to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) delivered to the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit PartyAgent. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).84

Liability of Agent. Neither the Agent nor any of its affiliates nor any of their respective directors, officers, agents, trustees, investment managers, servicers agents or employees shall be (x) deemed to have knowledge of any Default unless and until written notice thereof is given to the Agent by the Company or a Lender or (y) liable to any Lender for any action taken or not taken by it in connection herewith (a) with the Financing Documentsconsent or at the request of the Required Lenders (or, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to when expressly required hereby, all or a different proportion of the extent Lenders) or (b) in the absence of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdictionmisconduct. Neither the Agent nor any of its affiliates nor any of their respective directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (ai) any statement, warranty or representation made in connection with any Financing Document this Agreement or any borrowing hereunder; (bii) the performance or observance of any of the covenants or agreements specified in any Financing Documentof the Borrowers; (ciii) the satisfaction of any condition specified in any Financing DocumentArticle 3, except receipt of items required to be delivered to the Agent; or (div) the validity, effectiveness, sufficiency effectiveness or genuineness of any Financing Documentthis Agreement, any Lien purported to be created or perfected thereby the Notes or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Partyherewith. The Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. Without limiting the generality of the foregoing, the use of the term “agent” in 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 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. Except as expressly set forth herein, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any apportionment information relating to the Company or distribution any of payments made its Subsidiaries that is communicated to or obtained by it the bank serving as the Agent or any of its Affiliates 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)capacity.

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, opinion, direction, report, request or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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 error, the sole recourse of any Lender to whom payment was due but not made, 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). The Agent shall have no liability for any action taken, or errors in judgment made, in good faith by it or any of its officers, employees or agents, unless it shall have been negligent in ascertaining the pertinent facts. The permissive authorizations, entitlements, powers and rights (including the right to request that Borrower take an action or deliver a document and the exercise of remedies following an Event of Default) granted to the Agent herein shall not be construed as duties of the Agent. The Agent shall not be required to use, risk or advance its own funds or otherwise incur financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder or under any other Financing Document. In no event shall the Agent be liable, directly or indirectly, for any special, indirect, punitive or consequential damages, even if the Agent has been advised of the possibility of such damages and regardless of the form of action. Notwithstanding anything to the contrary contained in this Agreement, (i) the Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to an Eligible Assignee and (ii) Borrower and the Lenders acknowledge and agree that the Agent shall have no responsibility or obligation to determine whether any Lender or potential Lender is an Eligible Assignee and that the Agent shall have no liability with respect to any assignment or participation made to any Person which is not an Eligible Assignee. Neither the Agent nor any of its directors, officers, employees, agents or affiliates shall be responsible for nor have any duty to monitor the performance or any action of the Credit Parties, or any of their directors, members, officers, agents, affiliates or employees, nor shall it have any liability in connection with the malfeasance or nonfeasance by such parties. The Agent may assume performance by all such Persons of their respective obligations. The Agent shall have no enforcement or notification obligations relating to breaches or representations or warranties of any other Person. The Agent shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement or any other Financing Document arising out of or caused, directly or indirectly, by circumstances beyond its control, including any act or provision of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances; sabotage; epidemics; pandemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility. The Agent shall have no obligation to file or record any financing statements, notices, instruments, documents, agreements, consents or other papers as shall be necessary to (i) create, preserve, perfect or validate any security interest granted to the Agent pursuant to any Financing Document or (ii) enable the Agent to exercise and enforce its rights under any Financing Document. In addition, the Agent shall have no responsibility or liability (i) in connection with the acts or omissions of any Person in respect of the foregoing or (ii) for or with respect to the legality, validity and enforceability of any security interest created in the Collateral or the perfection and priority of such security interest. Whenever reference is made in this Agreement or any other Financing Document to any discretionary 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 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 (except for the Agent’s ability to waive the fee set forth in Section 11.17(a)(i) or in connection with the Agent’s ability to enter into any amendment to the Agency Fee Letter or any other Financing Document to which it is a party when such amendment affects the rights and obligations of the Agent, each of which shall be made in the Agent’s sole discretion), it is understood that in all cases that the Agent shall not have any duty to act, and shall be fully justified in failing or refusing to take any such action, if it has not received written instruction, advice or concurrence from the Required Lenders in respect of such action. If at any time the Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (including orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), the Agent is authorized to comply therewith in any manner as it or its legal counsel of its own choosing deems appropriate, and if the Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, the Agent shall not be liable to any of the parties hereto or to any other Person even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic 71 transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or ​ ​ willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).. ​

Liability of Agent. Neither the Agent nor any of its directors, officers, agentsemployees, trusteesrepresentatives, investment managers, servicers attorneys or employees agents shall be liable to any Lender for any action taken or not omitted to be taken by it or them under or in connection with any Loan Paper in the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent absence of its or their own gross negligence or willful misconduct which has been finally and judicially determined. Without limitation of the generality of the foregoing, the Agent (a) may treat the payee of any Note as the holder thereof until the Agent receives written notice of the assignment or transfer thereof signed by such payee and in form satisfactory to the discharge thereof as determined Agent; (b) may consult with legal counsel (including counsel for the Borrowers), independent public accountants and other experts selected by a final non-appealable judgment it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of a court of competent jurisdiction. Neither Agent nor such counsel, accountants or experts; (c) makes no warranty or representation to any of its directors, officers, agents, trustees, investment managers, servicers or employees Bank and shall not be responsible to any Bank for any statements, warranties or representations made in or in connection with any Loan Paper; (d) shall not have any duty to ascertain, ascertain or to inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) as to the performance or observance of any of the terms, covenants or agreements specified in conditions of any Financing DocumentLoan Paper on the part of the Borrowers, any of the other Subsidiaries or any other Person or to inspect the property (including the books and records) of the Borrowers, the other Subsidiaries, or any other Person; (ce) shall not be responsible to any Bank for the satisfaction of any condition specified in any Financing Document; (d) the due execution, legality, validity, effectivenessenforceability, genuineness, sufficiency or genuineness value of any Financing Document, any Lien purported to be created or perfected thereby of the Loan Papers or any other instrument or writing document furnished in connection therewithpursuant thereto; (e) the existence or non-existence of any Default or Event of Default; or and (f) the financial condition shall incur no liability under or in respect of any Credit Party. Agent shall not incur any liability of the Loan Papers by acting in reliance upon any notice, consent, certificate, statement, certificate or other instrument or writing (which may be a bank wireby telegram, facsimile telecopy or electronic transmission or similar writingtelex) believed by it to be genuine and signed or to be signed sent by the proper party or parties. The Agent may employ agents and attorneys in fact and shall not be liable responsible for the negligence or misconduct of any apportionment such agents or distribution of payments made attorneys in fact selected 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)with reasonable care.

Liability of Agent. Neither the Agent nor any of its Affiliates or any of their respective directors, officers, agents, trustees, investment managers, servicers employees or employees advisors shall be liable for 105 any action taken or omitted to be taken by it or them in good faith under or in connection with this Agreement or any other Loan Document in the absence of its or their own gross negligence or willful misconduct. Without limiting the generality of the foregoing, the Agent (1) may treat the payee of any Note as the holder thereof until the Agent receives written notice of the assignment or transfer thereof signed by such payee and in form satisfactory to the Agent; (2) may consult with legal counsel (including counsel for the Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants, or experts; (3) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any action taken statements, warranties, or not taken by it representations made in or in connection with the Financing Documents, except that Agent this Agreement; (4) shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or not have any duty to ascertain, ascertain or to inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) as to the performance or observance of any terms, covenants, or conditions of this Agreement on the part of the covenants Borrower (other than the payment of principal, interest and fees due hereunder), or agreements specified in any Financing Documentto inspect the property (including the books and records) of the Borrower; (c5) shall not be responsible to any Lender for the satisfaction of any condition specified in any Financing Document; (d) the due execution, legality, validity, effectivenessenforceability, genuineness, perfection, sufficiency or genuineness value of any Financing Document, any Lien purported to be created or perfected thereby this Agreement or any other instrument or writing document furnished pursuant hereto or the value, sufficiency, creation, perfection or priority of any Lien in connection therewithany collateral security; (e6) the existence or non-existence shall be deemed to have no knowledge of any Default unless and until written notice thereof is given to the Agent by the Borrower or Event a Lender; and (7) shall incur no liability under or in respect of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability this Agreement by acting in reliance upon any notice, consent, certificate, statement, certificate or other instrument or writing (which may be sent by any telecommunication device capable of creating a bank wire, facsimile or written record (including electronic transmission or similar writingmail)) reasonably believed by it to be genuine and signed or to be signed sent by the proper party or parties. 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).

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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). Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it. The Agent shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith or for any mistake in act or law, or for anything which it may do or refrain from doing in connection herewith, in each case except for its own gross negligence or willful misconduct. In no event shall the Agent be liable for any indirect, special, punitive or consequential loss or damage of any kind whatsoever, including, but not limited to, lost profits, even if such loss or damage was foreseeable or it has been advised of the likelihood of such loss or damage and regardless of the form of action. Agent shall have no responsibility for or liability with respect to monitoring compliance of any other party to the Loan Documents or any other document related hereto or thereto. Agent has no duty to monitor the value or rating of any Collateral on an ongoing basis. In no event shall 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, epidemics, pandemics, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services. Notwithstanding anything in the Loan Documents to the contrary, Agent shall have no responsibility for the preparation, filing or recording of any instrument, document or financing statement or for the perfection or maintenance of any security interest created hereunder.

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence negligence, bad faith or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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 100 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).

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic MidCap / Sientra / Second A&R Credit and Security Agreement (Term) transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).

Liability of Agent. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be liable to any Lender for any action taken or not taken by it in connection with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to the extent of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. Neither Agent nor any of its directors, officers, agents, trustees, investment managers, servicers or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with any Financing Document or any borrowing hereunder; (b) the performance or observance of any of the covenants or agreements specified in any Financing Document; (c) the satisfaction of any condition specified in any Financing Document; (d) the validity, effectiveness, sufficiency or genuineness of any Financing Document, any Lien purported to be created or perfected thereby or any other instrument or writing furnished in connection therewith; (e) the existence or non-existence of any Default or Event of Default; or (f) the financial condition of any Credit Party. Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it to be genuine or to be signed by the proper party or parties. 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).. Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it. The Agent shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith or for any mistake in act or law, or for anything which it may do or refrain from doing in connection herewith, in each case except for its own gross negligence or willful misconduct. In no event shall the Agent be liable for any indirect, special, punitive or consequential loss or damage of any kind whatsoever, including, but not limited to, lost profits, even if such loss or damage was foreseeable or it has been advised of the likelihood of such loss or damage and regardless of the form of action. Agent shall have no responsibility for or liability with respect to monitoring compliance of any other party to the Loan Documents or any other document related hereto or thereto. Agent has no duty to monitor the value or rating of any Collateral on an ongoing basis. In no event shall 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, epidemics, pandemics, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services. Notwithstanding anything in the Loan Documents to the contrary, Agent shall have no responsibility for the preparation, filing or recording of any instrument, document or financing statement or for the perfection or maintenance of any security interest created hereunder. Avenue / Rubicon / Credit, Security and Guaranty Agreement

Liability of Agent. Neither the Administrative Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be liable to any Lender Bank for any action taken or not taken by it in connection herewith (i) with the Financing Documents, except that Agent shall be liable with respect to its specific duties set forth hereunder but only to consent or at the extent request of the Required Banks or (ii) in the absence of its own gross negligence or willful misconduct in the discharge thereof as determined by a final non-appealable judgment of a court of competent jurisdiction. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the Company or a Bank stating that a Default or Event of Default has occurred and 4868-9081-7618 v.9 specifying the nature thereof. Neither the Administrative Agent nor any of its directors, officers, agents, trustees, investment managers, servicers agents or employees shall be responsible to any Bank for or have any duty to any Bank to ascertain, inquire into or verify (ai) any statement, warranty or representation made in connection with any Financing Document this Agreement or any borrowing hereunderhereunder or the issuance, amendment, renewal or extension of any Letter of Credit; (bii) the performance or observance of any of the covenants or agreements specified in of any Financing DocumentObligor; (ciii) the satisfaction of any condition specified in any Financing DocumentArticle III, except receipt of items required to be delivered to the Administrative Agent; (div) the validity, effectiveness, sufficiency effectiveness or genuineness of any Financing Documentthis Agreement, any Lien purported to be created or perfected thereby other Credit Document or any other instrument or writing furnished in connection therewithherewith; (ev) the existence or non-possible existence of any Default or Event of Default; or (fvi) the financial condition of the Company or any Credit Partyof its Subsidiaries; or (vii) the contents of any certificate, report or other document delivered hereunder or in connection herewith. The Administrative Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, facsimile or electronic transmission or similar writing) believed by it in good faith to be genuine or to be signed by the proper party or parties. 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).