PART THEREOF. NOTWITHSTANDING ANYTHING TO THE CONTRARY
IN ANY SECURITY DOCUMENT, (I) THE COLLATERAL AGENT SHALL NOT BE REQUIRED TO
EXERCISE ANY RIGHT OR REMEDY AVAILABLE TO IT UNDER SUCH SECURITY DOCUMENT AND
(II) THE COLLATERAL AGENT SHALL NOT HAVE ANY DUTY TO TAKE ANY DISCRETIONARY
ACTION OR EXERCISE ANY DISCRETIONARY POWERS, IN EACH CASE, UNLESS THE COLLATERAL
AGENT SHALL HAVE BEEN DIRECTED TO DO SO BY THE TRUSTEE (OR, IF THE COLLATERAL
AGENT SHALL ALSO BE THE TRUSTEE, BY HOLDERS OF AT LEAST A MAJORITY IN PRINCIPAL
AMOUNT OF THE SECURITIES THEN OUTSTANDING). THE COLLATERAL AGENT SHALL BE
ACCOUNTABLE ONLY FOR AMOUNTS THAT IT ACTUALLY RECEIVES AS A RESULT OF THE
EXERCISE OF SUCH POWERS, AND NEITHER THE COLLATERAL AGENT NOR ANY OF ITS
OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS SHALL BE RESPONSIBLE FOR ANY ACT OR
FAILURE TO ACT HEREUNDER, EXCEPT FOR ITS OWN WILLFUL MISCONDUCT, GROSS
NEGLIGENCE OR BAD FAITH.
(B)
EACH HOLDER, BY ITS ACCEPTANCE OF THIS INDENTURE AND THE
SECURITIES, (I) IRREVOCABLY APPOINTS THE COLLATERAL AGENT AS ITS AGENT AND
AUTHORIZES AND DIRECTS THE COLLATERAL AGENT TO TAKE SUCH ACTIONS ON ITS BEHALF
AND TO EXERCISE SUCH POWERS AS ARE DELEGATED TO THE COLLATERAL AGENT BY THE
TERMS OF THE SECURITY DOCUMENTS AND THE INTERCREDITOR AGREEMENT, TOGETHER WITH
SUCH ACTIONS AND POWERS AS ARE REASONABLY INCIDENTAL THERETO, AND (II)
AUTHORIZES AND DIRECTS THE COLLATERAL AGENT, WITHOUT ANY FURTHER CONSENT,
AUTHORIZATION OR OTHER ACTION BY SUCH HOLDER, (A) TO ENTER INTO THE SECURITY
DOCUMENTS AND THE INTERCREDITOR AGREEMENT, AND ANY AMENDMENT OF ANY OF THE
FOREGOING (INCLUDING, IN THE CASE OF THE INTERCREDITOR AGREEMENT, ANY
MODIFICATIONS THEREOF EXPRESSLY CONTEMPLATED BY SECTION 5.07 THEREOF) THAT IS
PERMITTED UNDER THIS INDENTURE, (B) TO BIND SUCH HOLDER TO THE PROVISIONS OF THE
SECURITY DOCUMENTS AND THE INTERCREDITOR AGREEMENT AND (C) TO PERFORM AND
OBSERVE ITS OBLIGATIONS UNDER THE SECURITY DOCUMENTS AND THE INTERCREDITOR
AGREEMENT.
(C)
IF THE COMPANY (I) INCURS INDEBTEDNESS CONSTITUTING CREDIT
AGREEMENT OBLIGATIONS AT ANY TIME WHEN NO INTERCREDITOR AGREEMENT IS IN EFFECT
OR AT ANY TIME WHEN INDEBTEDNESS CONSTITUTING CREDIT AGREEMENT OBLIGATIONS
ENTITLED TO THE BENEFIT OF AN EXISTING INTERCREDITOR AGREEMENT IS CONCURRENTLY
RETIRED, AND (II) DELIVERS TO THE COLLATERAL AGENT AN OFFICERS' CERTIFICATE SO
STATING AND REQUESTING THE COLLATERAL AGENT TO ENTER INTO AN INTERCREDITOR
AGREEMENT IN FAVOR OF A DESIGNATED AGENT OR REPRESENTATIVE FOR THE HOLDERS OF
THE INDEBTEDNESS SO INCURRED, THE COLLATERAL AGENT SHALL (AND IS HEREBY
AUTHORIZED AND DIRECTED TO) ENTER INTO SUCH INTERCREDITOR AGREEMENT, BIND THE
HOLDERS ON THE TERMS SET FORTH THEREIN, AND PERFORM AND OBSERVE ITS OBLIGATIONS
THEREUNDER.
99
(D)
THE COLLATERAL AGENT SHALL HAVE THE BENEFIT OF THE PROVISIONS OF
ARTICLE 7 WITH RESPECT TO ALL ACTIONS TAKEN BY IT PURSUANT TO THIS SECTION OR
ANY SECURITY DOCUMENT TO THE FULL EXTENT THEREOF.
SECTION 11.08.
CANADIAN COLLATERAL AGENT. (A)
BNY TRUST COMPANY OF CANADA
SHALL INITIALLY ACT AS CANADIAN COLLATERAL AGENT AND IS AUTHORIZED BY THE
COMPANY TO APPOINT CO-AGENTS AS NECESSARY IN ITS SOLE DISCRETION. THE CANADIAN