Co-Collateral Agent. (a) Except as expressly set forth herein, (i) Co-Collateral Agent shall not have any duties or responsibilities, (ii) Co-Collateral Agent shall not have or be deemed to have any fiduciary relationship with any Lender and (iii) no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against Co-Collateral Agent. At any time that any Lender serving (or whose Affiliate is serving) as Co-Collateral Agent shall have transferred to any other Person (other than any Affiliates) all of its interests in the Loans and the Revolving Loan Commitment, such Lender (or an Affiliate of such Lender acting as Co-Collateral Agent) shall be deemed to have concurrently resigned as Co-Collateral Agent (and no successor will be appointed hereunder). In addition, Co-Collateral Agent may at any time in its sole discretion resign from acting in such capacity upon written notice to Agent and the Borrower Representative. In the event that there shall exist no Person acting in the capacity of Co-Collateral Agent, any references herein to the Co-Collateral Agent shall be deemed to refer to Agent. (b) In the event that, with respect to any matter herein that requires or permits a decision, exercise of discretion or other determination by Agent and/or Co-Collateral Agent (including matters relating to Reserves and other matters affecting the calculation of any Borrowing Base, any Availability or any Maximum Revolving Loan Balance), Agent and Co-Collateral Agent do not agree on such determination, the same shall reflect the determination of the Person that asserts the most conservative Credit Judgment on behalf of the Lenders. For the avoidance of doubt, Agent shall have the sole and exclusive authority to act as collateral agent for the Secured Parties for purposes of perfecting and administering Liens granted by the Credit Parties and for all other purposes stated herein and in the other Loan Documents (other than the authority specifically granted to the Co-Collateral Agent herein). As used in this subsection 8.13(b), “Credit Judgment” shall mean Agent’s or Co-Collateral Agent’s, as the case may be, judgment exercised in good faith and in the exercise of reasonable (from the perspective of a secured asset based lender) business judgment, based upon its consideration of any factor that it believes (a) could adversely affect the quantity, quality, mix or value of Collateral (including any applicable law that may inhibit collection of an Account), the enforceability or priority of Agent’s Liens, or the amount that Agent, the Co-Collateral Agent and Lenders could receive in liquidation of any Collateral; (b) suggests that any collateral report or financial information delivered by any Credit Party is incomplete, inaccurate or misleading in any material respect; (c) materially increases the likelihood of any Insolvency Proceeding involving an Credit Party or (d) creates or could reasonably be expected to result in a Default or Event of Default. In exercising such judgment, Agent or Co-Collateral Agent, as applicable, may consider any factors that could increase the credit risk of lending to Borrowers or the security of the Collateral.
Appears in 2 contracts
Sources: Credit Agreement (Evraz North America PLC), Credit Agreement (Evraz North America LTD)
Co-Collateral Agent. (a) If deemed necessary or desirable by the Collateral Agent or by the Majority Senior Creditors in order to enforce, preserve or protect any interest in any of the Collateral, then the Majority Senior Creditors may, by notice to the Collateral Agent, appoint a co-collateral agent (a "Co-Collateral Agent"), which shall be an institution that would otherwise qualify as a successor Collateral Agent. Except as expressly set forth hereinbelow, (i) any Co-Collateral Agent so appointed shall not have any all the rights, powers, duties and obligations of the Collateral Agent for the purposes of enforcing the Security Documents with respect to which it shall have been appointed to act by the Collateral Agent or responsibilities, (ii) the Majority Senior Creditors. Upon the appointment of a Co-Collateral Agent shall not have with respect to any item or be deemed items of Collateral, except as expressly provided below, all rights, powers, duties and obligations of the Collateral Agent hereunder with respect to have any fiduciary relationship with any Lender and (iii) no implied covenants, functions, responsibilities, duties, obligations such item or liabilities items of Collateral shall be read into this Agreement or any other Loan Document or otherwise exist against Co-Collateral Agent. At any time that any Lender serving (or whose Affiliate is serving) as Co-exercised and performed jointly by the Collateral Agent shall have transferred to any other Person (other than any Affiliates) all of its interests in the Loans and the Revolving Loan Commitment, such Lender (or an Affiliate of such Lender acting as Co-Collateral Agent) shall be deemed to have concurrently resigned as Co-Collateral Agent (and no successor will be appointed hereunder). In addition, or by the Collateral Agent or the Co-Collateral Agent may at any time in its sole discretion resign from acting in such capacity upon written notice to Agent and individually as directed by the Borrower Representative. In the event that there shall exist no Person acting in the capacity of Collateral Agent).
(b) Any Co-Collateral Agent shall, to the extent permitted by law, be appointed and act as such, subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred upon the Collateral Agent in respect of the custody, control and management of moneys, papers or securities (including without limitation any collateral accounts) shall be exercised solely by the Collateral Agent; and
(ii) all other rights, any references herein to powers, duties and obligations conferred upon the Co-Collateral Agent shall be deemed to refer to Agent.
(b) In the event that, with respect to any matter herein that requires or permits a decision, exercise of discretion or other determination exercised jointly by Agent and/or Co-Collateral Agent (including matters relating to Reserves and other matters affecting the calculation of any Borrowing Base, any Availability or any Maximum Revolving Loan Balance), Agent and Co-Collateral Agent do not agree on such determination, the same shall reflect the determination of the Person that asserts the most conservative Credit Judgment on behalf of the Lenders. For the avoidance of doubt, Agent shall have the sole and exclusive authority to act as collateral agent for the Secured Parties for purposes of perfecting and administering Liens granted by the Credit Parties and for all other purposes stated herein and in the other Loan Documents (other than the authority specifically granted to the Co-Collateral Agent herein). As used in this subsection 8.13(b), “Credit Judgment” shall mean Agent’s or Co-Collateral Agent’s, as the case may be, judgment exercised in good faith and in the exercise of reasonable (from the perspective of a secured asset based lender) business judgment, based upon its consideration of any factor that it believes (a) could adversely affect the quantity, quality, mix or value of Collateral (including any applicable law that may inhibit collection of an Account), the enforceability or priority of Agent’s Liens, or the amount that Agent, the Co-Collateral Agent and Lenders could receive in liquidation the Collateral Agent (or by the Co-Collateral Agent with the consent of any Collateral; (b) suggests that any collateral report or financial information delivered by any Credit Party is incomplete, inaccurate or misleading in any material respect; the Collateral Agent).
(c) materially increases Neither the likelihood Collateral Agent nor the Co-Collateral Agent shall be liable by reason of any Insolvency Proceeding involving an Credit Party act or omission of the other.
(d) creates or could reasonably be expected to result in If a Default or Event of Default. In exercising such judgment, Agent or Co-Collateral Agent is appointed, each reference to the "Collateral Agent" in any Credit Document shall be deemed to refer to the Collateral Agent and the Co-Collateral Agent jointly, as applicable, may consider any factors that could increase unless the credit risk of lending to Borrowers or the security of the Collateralcontext clearly indicates otherwise.
Appears in 1 contract
Co-Collateral Agent. (a) Except Notwithstanding any other provisions of this Agreement, but in all events not in limitation of the provisions of Section 5.04(b), at any time for the purpose of meeting any legal requirement of any jurisdiction (including any jurisdiction in which any part of the Collateral may at the time be located), the Collateral Agent shall have the power and may execute and deliver all instruments necessary for the appointment of one or more Persons to act as expressly set forth hereina co-collateral agent or co-collateral agents, or separate collateral agent or separate collateral agents (including with respect to all or any part of the Collateral), and to vest in such Person or Persons, in such capacity and for the benefit of the Secured Parties, subject to the other provisions of this Section, such powers, duties, obligations and rights as the Collateral Agent may consider necessary or desirable (including title to the Collateral, or any part thereof).
(b) Every separate collateral agent and co-collateral agent shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions:
(i) Coall rights, powers, duties and obligations conferred or imposed upon the Collateral Agent shall be conferred or imposed upon and exercised or performed by the Collateral Agent and such separate collateral agent or co-collateral agent jointly (it being understood that such separate collateral agent or co-collateral agent is not authorized to act separately without the Collateral Agent joining in such act), except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed the Collateral Agent shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Collateral or any portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate collateral agent or co-collateral agent, but solely at the direction of the Collateral Agent;
(ii) the Collateral Agent shall not have be personally liable by reason of any duties act or responsibilitiesomission of any co-collateral agent or separate collateral agent hereunder selected in good faith. No co-collateral agent hereunder shall be personally liable by reason of any act or omission of the Collateral Agent, (ii) Coany separate collateral agent or any other co-collateral agent hereunder. No separate collateral agent hereunder shall be personally liable by reason of any act or omission of the Collateral Agent shall not have Agent, any co-collateral agent or be deemed to have any fiduciary relationship with any Lender and other separate collateral agent hereunder; and
(iii) no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against Co-Collateral Agent. At any time that any Lender serving (or whose Affiliate is serving) as Co-Collateral Agent shall have transferred to any other Person (other than any Affiliates) all of its interests in the Loans and the Revolving Loan Commitment, such Lender (or an Affiliate of such Lender acting as Co-Collateral Agent) shall be deemed to have concurrently resigned as Co-Collateral Agent (and no successor will be appointed hereunder). In addition, Co-Collateral Agent may at any time in its sole discretion resign from acting in such capacity upon written notice to Agent and accept the Borrower Representative. In the event that there shall exist no Person acting in the capacity resignation of Coor remove any separate collateral agent or co-Collateral Agentcollateral agent.
(c) Any notice, any references herein request or other writing given to the Co-Collateral Agent shall be deemed to have been given to each of the then separate collateral agents and co-collateral agents, as effectively as if given to each of them. Every instrument appointing any separate collateral agent or co-collateral agent shall refer to this Agreement and the conditions of this Article V. Each separate collateral agent and co-collateral agent, upon its acceptance of an appointment to act in such capacity, shall be vested with the powers, duties, obligations and rights specified in its instrument of appointment, either jointly with the Collateral Agent or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection or rights (including the rights to compensation, reimbursement and indemnification hereunder) to, the Collateral Agent. Every such instrument shall be filed with the Collateral Agent.
(bd) In Any separate collateral agent or co-collateral agent may at any time constitute the event that, with respect to any matter herein that requires or permits a decision, exercise of discretion or other determination by Agent and/or Co-Collateral Agent (including matters relating its agent or attorney-in-fact with full power and authority, to Reserves the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and other matters affecting the calculation of in its name. If any Borrowing Base, any Availability or any Maximum Revolving Loan Balance), Agent and Co-Collateral Agent do not agree on such determination, the same shall reflect the determination of the Person that asserts the most conservative Credit Judgment on behalf of the Lenders. For the avoidance of doubt, Agent shall have the sole and exclusive authority to act as separate collateral agent for the Secured Parties for purposes or co-collateral agent shall die, become incapable of perfecting acting, resign or be removed, all of his, her or its powers, duties, obligations and administering Liens granted rights under this Agreement shall vest in and be exercised by the Credit Parties and for all other purposes stated herein and in the other Loan Documents (other than the authority specifically granted to the Co-Collateral Agent herein). As used in this subsection 8.13(b), “Credit Judgment” shall mean Agent’s or Co-Collateral Agent’s, as the case may be, judgment exercised in good faith and in the exercise of reasonable (from the perspective of a secured asset based lender) business judgment, based upon its consideration of any factor that it believes (a) could adversely affect the quantity, quality, mix or value of Collateral (including any applicable law that may inhibit collection of an Account), the enforceability or priority of Agent’s Liens, or the amount that Agent, the Co-Collateral Agent and Lenders could receive in liquidation of any Collateral; (b) suggests that any collateral report or financial information delivered by any Credit Party is incomplete, inaccurate or misleading in any material respect; (c) materially increases the likelihood of any Insolvency Proceeding involving an Credit Party or (d) creates or could reasonably be expected to result in a Default or Event of Default. In exercising such judgment, Agent or Co-Collateral Agent, as applicableto the extent permitted by law, may consider any factors that could increase the credit risk without appointment of lending to Borrowers a new or the security of the Collateralsuccessor collateral agent.
Appears in 1 contract
Sources: Security Trust and Guarantee Agreement (Avolon Holdings LTD)
Co-Collateral Agent. (a) Except Notwithstanding any other provisions of this Agreement, at any time, for the purpose of meeting any legal requirements of any jurisdiction in which any part of the Collateral or any Equipment may at the time be located or to otherwise facilitate the transactions contemplated thereby, the Servicer, the Administrative Agent, the Surety Provider and the Collateral Agent acting jointly shall execute and deliver all instruments to appoint one or more persons approved by the Collateral Agent and the Surety Provider to act as expressly set forth herein, (i) Coco-Collateral Agent, jointly with the Collateral Agent, or separate Collateral Agent, with respect to all or any part of the Collateral, and to vest in such Person, in such capacity and for the benefit of the Secured Parties, such rights, duties and obligations, as the Servicer, the Administrative Agent, the Surety Provider and the Collateral Agent may consider necessary or desirable. If the Servicer and the Administrative Agent shall not have joined in such appointment within 15 days after the receipt by it of a request so to do, or in the case an Event of Default shall have occurred and be continuing, the Collateral Agent, with the prior written consent of the Surety Provider, alone shall have the power to make such appointment. No co- Collateral Agent or separate Collateral Agent under this Agreement shall be required to meet the terms of eligibility as a successor collateral agent pursuant to Section 11.5. Each separate Collateral Agent and co-Collateral Agent shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions:
(i) All rights, duties and obligations conferred or imposed upon the Collateral Agent shall be conferred upon and exercised or performed by the Collateral Agent and such separate Collateral Agent or co-Collateral Agent jointly (it being understood that such separate Collateral Agent or co-Collateral Agent is not authorized to act separately without the Collateral Agent joining in such act), except to the extent that under any duties law of any jurisdiction in which any particular act or responsibilitiesacts are to be performed (whether as Collateral Agent under this Agreement or as successor to the Servicer under this Agreement), the Collateral Agent shall be incompetent or unqualified to perform such act or acts, in which event such rights, duties, and obligations shall be exercised and performed singly by such separate Collateral Agent or co-Collateral Agent, but solely at the direction of the Collateral Agent;
(ii) CoNo Collateral Agent under this Agreement shall be personally liable by reason of any act or omission of any other co-Collateral Agent shall not have or be deemed to have any fiduciary relationship with any Lender and under this Agreement; and
(iii) no implied covenantsThe Administrative Agent, functionsthe Surety Provider and the Collateral Agent acting jointly may, responsibilities, duties, obligations at any time accept the resignation of or liabilities shall be read into this Agreement remove any separate Collateral Agent or any other Loan Document or otherwise exist against Coco-Collateral Agent. At any time that any Lender serving (Any notice, request or whose Affiliate is serving) as Co-other writing given to the Collateral Agent shall have transferred to any other Person (other than any Affiliates) all of its interests in the Loans and the Revolving Loan Commitment, such Lender (or an Affiliate of such Lender acting as Co-Collateral Agent) shall be deemed to have concurrently resigned been given to each of the other then separate Collateral Agent and co-Collateral Agent, as Coeffectively as if given to each of them. Every instrument appointing any separate Collateral Agent or co-Collateral Agent (shall refer to this Agreement and no successor will the conditions of this Article XI. Each separate Collateral Agent and co-Collateral Agent, upon its acceptance of the rights, duties and obligations specified in its instrument of appointment, shall be appointed hereunder)vested with such rights, duties and obligations, either jointly with the Collateral Agent or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Collateral Agent. In addition, CoEach such instrument shall be filed with the Collateral Agent and a copy thereof given to the Servicer and the Surety Provider. Any separate Collateral Agent or co-Collateral Agent may at any time appoint the Collateral Agent its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its sole discretion resign from acting in such capacity upon written notice to name. If any separate Collateral Agent and the Borrower Representative. In the event that there shall exist no Person acting in the capacity of Co-Collateral Agent, any references herein to the Coor co-Collateral Agent shall become incapable of acting, resign or be deemed to refer to Agent.
(b) In the event thatremoved, with respect to any matter herein that requires or permits a decisionall of its rights, exercise of discretion or other determination by Agent and/or Co-Collateral Agent (including matters relating to Reserves and other matters affecting the calculation of any Borrowing Base, any Availability or any Maximum Revolving Loan Balance), Agent duties shall vest in and Co-Collateral Agent do not agree on such determination, the same shall reflect the determination of the Person that asserts the most conservative Credit Judgment on behalf of the Lenders. For the avoidance of doubt, Agent shall have the sole and exclusive authority to act as collateral agent for the Secured Parties for purposes of perfecting and administering Liens granted be exercised by the Credit Parties and for all other purposes stated herein and in the other Loan Documents (other than the authority specifically granted to the Co-Collateral Agent herein). As used in this subsection 8.13(b), “Credit Judgment” shall mean Agent’s or Co-Collateral Agent’s, as the case may be, judgment exercised in good faith and in the exercise of reasonable (from the perspective of a secured asset based lender) business judgment, based upon its consideration of any factor that it believes (a) could adversely affect the quantity, quality, mix or value of Collateral (including any applicable law that may inhibit collection of an Account), the enforceability or priority of Agent’s Liens, or the amount that Agent, the Co-Collateral Agent and Lenders could receive in liquidation of any Collateral; (b) suggests that any collateral report or financial information delivered by any Credit Party is incomplete, inaccurate or misleading in any material respect; (c) materially increases the likelihood of any Insolvency Proceeding involving an Credit Party or (d) creates or could reasonably be expected to result in a Default or Event of Default. In exercising such judgment, Agent or Co-Collateral Agent, as applicableto the extent permitted by law, may consider any factors that could increase without the credit risk appointment of lending to Borrowers a new or the security of the Collateralsuccessor Collateral Agent.
Appears in 1 contract
Sources: Warehouse Loan and Security Agreement (Financial Pacific Co)
Co-Collateral Agent. (a) If an Event of Default has occurred, the Required Lenders may, by notice to the Collateral Agent, appoint a co-collateral agent (a "Co-Collateral Agent"), which shall be an institution that would otherwise qualify as a successor Collateral Agent. Except as expressly set forth hereinbelow, (i) any Co-Collateral Agent so appointed shall not have any all the rights, powers, duties or responsibilities, (ii) Co-and obligations of the Collateral Agent shall not have or be deemed to have any fiduciary relationship with any Lender and (iii) no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against Agent. Upon the appointment of a Co-Collateral Agent. At any time that any Lender serving (or whose Affiliate is serving) , except as Co-expressly provided below, all rights, powers, duties and obligations of the Collateral Agent hereunder shall have transferred to any other Person (other than any Affiliates) all of its interests in be exercised and performed jointly by the Loans Collateral Agent and the Revolving Loan Commitment, such Lender (or an Affiliate of such Lender acting as Co-Collateral Agent) shall be deemed to have concurrently resigned as Co-Collateral Agent (and no successor will be appointed hereunderor by one of such Agents with the consent of the other). In addition, The Collateral Agent shall execute and deliver all such instruments and agreements as shall be necessary or proper to provide to any Co-Collateral Agent may at any time in its sole discretion resign from acting in such capacity upon written notice joint rights and powers with respect to Agent and the Borrower Representative. In the event that there shall exist no Person acting in the capacity of Collateral.
(b) Any Co-Collateral Agent shall, to the extent permitted by law, be appointed and act as such, subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred upon the Collateral Agent in respect of the custody, control and management of moneys, papers or securities shall be exercised solely by the Collateral Agent; and
(ii) all other rights, any references herein to powers, duties and obligations conferred upon the Collateral Agent or the Co-Collateral Agent shall be deemed to refer to Agent.
(b) In the event that, with respect to any matter herein that requires or permits a decision, exercise of discretion or other determination exercised jointly by Agent and/or Co-Collateral Agent (including matters relating to Reserves and other matters affecting the calculation of any Borrowing Base, any Availability or any Maximum Revolving Loan Balance), Agent and Co-Collateral Agent do not agree on such determination, the same shall reflect the determination of the Person that asserts the most conservative Credit Judgment on behalf of the Lenders. For the avoidance of doubt, Agent shall have the sole and exclusive authority to act as collateral agent for the Secured Parties for purposes of perfecting and administering Liens granted by the Credit Parties and for all other purposes stated herein and in the other Loan Documents (other than the authority specifically granted to the Co-Collateral Agent herein). As used in this subsection 8.13(b), “Credit Judgment” shall mean Agent’s or Co-Collateral Agent’s, as the case may be, judgment exercised in good faith and in the exercise of reasonable (from the perspective of a secured asset based lender) business judgment, based upon its consideration of any factor that it believes (a) could adversely affect the quantity, quality, mix or value of Collateral (including any applicable law that may inhibit collection of an Account), the enforceability or priority of Agent’s Liens, or the amount that Agent, the Co-Collateral Agent and Lenders could receive in liquidation the Collateral Agent (or by one of any Collateral; (b) suggests that any collateral report or financial information delivered by any Credit Party is incomplete, inaccurate or misleading in any material respect; such Agents with the consent of the other).
(c) materially increases Neither the likelihood of any Insolvency Proceeding involving an Credit Party or (d) creates or could reasonably be expected to result in a Default or Event of Default. In exercising such judgment, Collateral Agent or nor the Co-Collateral Agent, as applicable, may consider Agent shall be liable by reason of any factors that could increase the credit risk of lending to Borrowers act or the security omission of the Collateralother.
Appears in 1 contract
Co-Collateral Agent. (a) Except as expressly set forth herein, (i) Co-Collateral Agent shall not have any duties or responsibilities, (ii) Co-Collateral Agent shall not have or be deemed to have any fiduciary relationship with any Lender and (iii) no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against Co-Collateral Agent. At any time that any Lender serving (or whose Affiliate is serving) as Co-Collateral Agent shall have transferred to any other Person (other than any Affiliates) all of its interests in the Loans and the Revolving Loan Commitment, such Lender (or an Affiliate of such Lender acting as Co-Collateral Agent) shall be deemed to have concurrently resigned as Co-Collateral Agent (and no successor will be appointed hereunder). In addition, Co-Collateral Agent may If at any time or times it shall be necessary or prudent in its sole discretion resign from acting order to conform to any law of any jurisdiction in such capacity upon written notice to Agent and which any of the Borrower Representative. In Collateral shall be located, or the event that there shall exist no Person acting in the capacity of Co-Collateral Agent, any references herein to the Co-Collateral Agent shall be deemed advised by counsel satisfactory to refer it that it is necessary or prudent in the interest of the Holders, or 25% of the Holders of the outstanding Securities shall in writing so request the Collateral Agent and the Company, or the Collateral Agent shall deem it desirable for its own protection in the performance of its duties hereunder, the Collateral Agent and the Company shall execute and deliver all instruments and agreements necessary or proper to constitute another bank or trust company, or one or more Persons approved by the Collateral Agent and the Company, either to act as co-collateral agent or co-collateral agents (each a "co-collateral agent") of all or any of the Collateral, jointly with the Collateral Agent, or to act as separate collateral agent or collateral agents of any such property. If the Company shall not have joined in the execution of such instruments and agreements within 10 days after it receives a written request from the Collateral Agent to do so, or if a notice of acceleration is in effect, the Collateral Agent may act under the foregoing provisions of this Section 7.12 without the concurrence of the Company. The Company hereby appoints the Collateral Agent as its agent and attorney to act for it under the foregoing provisions of this Section 7.12 in either of such contingencies.
(b) In Every separate trustee and every co-trustee, other than any successor Trustee appointed pursuant to Section 7.8, shall, to the event thatextent permitted by law, with respect be appointed and act and be such, subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed upon the Trustee hereunder shall be conferred or imposed and exercised or performed by the Trustee and such separate trustee or separate trustees or co-trustee or co-trustees, jointly, as shall be provided in the instrument appointing such separate trustee or separate trustees or co-trustee or co-trustees, except to the extent that under any matter herein that requires or permits a decision, exercise of discretion or other determination by Agent and/or Co-Collateral Agent (including matters relating to Reserves and other matters affecting the calculation law of any Borrowing Basejurisdiction in which any particular act or acts are to be performed the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations shall be exercised and performed by such separate trustee or separate trustees or co-trustee or co-trustees;
(ii) no trustee hereunder shall be personally liable by reason of any Availability act or omission of any Maximum Revolving Loan Balance)other trustee hereunder; and
(iii) the Company and the Trustee, Agent and Coat any time by an instrument in writing executed by them jointly, may accept the resignation of or remove any such separate trustee or co-Collateral Agent do not agree on trustee and, in that case by an instrument in writing executed by them jointly, may appoint a successor to such determination, the same shall reflect the determination of the Person that asserts the most conservative Credit Judgment on behalf of the Lenders. For the avoidance of doubt, Agent shall have the sole and exclusive authority to act as collateral agent for the Secured Parties for purposes of perfecting and administering Liens granted by the Credit Parties and for all other purposes stated herein and in the other Loan Documents (other than the authority specifically granted to the Coseparate trustee or co-Collateral Agent herein). As used in this subsection 8.13(b), “Credit Judgment” shall mean Agent’s or Co-Collateral Agent’strustee, as the case may be, judgment exercised in good faith and anything contained herein to the contrary notwithstanding. If the Company shall not have joined in the exercise execution of reasonable (any such instrument within 10 days after it receives a written request from the perspective Trustee to do so, or if a notice of a secured asset based lender) business judgment, based upon its consideration of any factor that it believes (a) could adversely affect the quantity, quality, mix or value of Collateral (including any applicable law that may inhibit collection of an Account)acceleration is in effect, the enforceability Trustee shall have the power to accept the resignation of or priority remove any such separate trustee or co-trustee and to appoint a successor without the concurrence of Agent’s Liensthe Company, the Company hereby appointing the Trustee its agent and attorney to act for it in such connection in such contingency. If the Trustee shall have appointed a separate trustee or separate trustees or co-trustee or co-trustees as above provided, the Trustee may at any time, by an instrument in writing, accept the resignation of or remove any such separate trustee or co-trustee and the successor to any such separate trustee or co-trustee shall be appointed by the Company and the Trustee, or by the amount that Agent, the Co-Collateral Agent and Lenders could receive in liquidation of any Collateral; (b) suggests that any collateral report or financial information delivered by any Credit Party is incomplete, inaccurate or misleading in any material respect; (c) materially increases the likelihood of any Insolvency Proceeding involving an Credit Party or (d) creates or could reasonably be expected trustee alone pursuant to result in a Default or Event of Default. In exercising such judgment, Agent or Co-Collateral Agent, as applicable, may consider any factors that could increase the credit risk of lending to Borrowers or the security of the Collateralthis Section.
Appears in 1 contract
Sources: Indenture (Hvide Marine Inc)
Co-Collateral Agent. (a) Except as expressly set forth herein, (i) Co-Collateral Agent shall not have any duties or responsibilities, (ii) Co-Collateral Agent shall not have or be deemed to have any fiduciary relationship with any Lender and (iii) no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against Co-Collateral Agent. At any time that or times, for the purpose of meeting any Lender serving (or whose Affiliate is serving) as Co-legal requirements of any jurisdiction in which any of the Collateral may at the time be located, the Collateral Agent shall have transferred the power to appoint any other Person (other than or Persons either to act as co-collateral agent, or co-collateral agents, jointly with the Collateral Agent of all or any Affiliates) part of the Collateral or to act as separate collateral agent or separate collateral agents of all or any part of its interests the Collateral and to vest in the Loans and the Revolving Loan Commitmentsuch Person or Persons, in such capacity, such Lender (title to the Collateral or an Affiliate of any part thereof, and such Lender acting rights, powers, duties or obligations as Co-Collateral Agent) shall be deemed to have concurrently resigned as Co-Collateral Agent (and no successor will be appointed hereunder). In addition, Co-the Collateral Agent may at any time in its sole discretion resign from acting in such capacity upon written notice consider necessary or desirable, subject to Agent and the Borrower Representative. In the event that there shall exist no Person acting other provisions of this SECTION 27.
(b) Unless otherwise provided in the capacity instrument appointing such co-collateral agent or separate collateral agent, every co-collateral agent or separate collateral agent shall, to the extent permitted by law, be appointed subject to the following terms, namely:
(i) All rights, powers, duties and obligations under this Security Agreement conferred upon the Collateral Agent in respect of Co-the custody, control or management of the Collateral, shall be exercised solely by the Collateral Agent;
(ii) All rights, powers, duties and obligations conferred or imposed upon the collateral agents shall be conferred or imposed upon and exercised or performed by the Collateral Agent, any references herein or by the Collateral Agent and such co-collateral agent or co-collateral agents, or separate collateral agent or separate collateral agents jointly, except to the Coextent that, under the law of any jurisdiction in which any particular act or acts are to be performed, the Collateral Agent shall be incompetent or unqualified to perform such act or acts, in which event such act or acts shall be performed by such co-collateral agent or co-collateral agents or separate collateral agent or separate collateral agents;
(iii) Any request in writing by the Collateral Agent to any co-collateral agent or separate collateral agent to take or to refrain from taking any action hereunder shall be sufficient warrant for the taking, or the refraining from taking, of such action by such co-collateral agent or separate collateral agent;
(iv) Any co-collateral agent or separate collateral agent to the extent permitted by law may delegate to the Collateral Agent the exercise of any right, power, duty or obligation, discretionary or otherwise;
(v) The Collateral Agent at any time, by an instrument in writing, may accept the resignation of, or remove, any co-collateral agent or separate collateral agent appointed under this SECTION 27. A successor to any co-collateral agent or separate collateral agent so resigned or removed may be appointed in the manner provided in this SECTION 27;
(vi) No collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder;
(vii) Any demand, request, direction, appointment, removal, notice, consent, waiver or other action in writing delivered to the Collateral Agent shall be deemed to refer have been delivered to Agenteach such co-collateral agent or separate collateral agent; and
(viii) Any Collateral received by any such co-collateral agent or separate collateral agent hereunder shall forthwith, so far as may be permitted by law, be turned over to the Collateral Agent to be held pursuant to the terms hereof.
(bc) In Upon the event thatacceptance in writing of such appointment by any such co-collateral agent or separate collateral agent, it or he shall be vested with respect to any matter herein that requires or permits a decisionthe estate, exercise of discretion or other determination by Agent and/or Co-Collateral Agent (including matters relating to Reserves right, title and other matters affecting interest in the calculation of any Borrowing BaseCollateral, any Availability or any Maximum Revolving Loan Balance)portion thereof, Agent and Co-with such rights, powers, duties, trusts or obligations, jointly or separately with the Collateral Agent do not agree on such determinationAgent, the same all as shall reflect the determination of the Person that asserts the most conservative Credit Judgment on behalf of the Lenders. For the avoidance of doubt, Agent shall have the sole and exclusive authority to act as collateral agent for the Secured Parties for purposes of perfecting and administering Liens granted by the Credit Parties and for all other purposes stated herein and be specified in the other Loan Documents (other than instrument of appointment, subject to all the authority specifically granted to the Co-Collateral Agent herein). As used in this subsection 8.13(b), “Credit Judgment” shall mean Agent’s or Co-Collateral Agent’s, as the case may be, judgment exercised in good faith and in the exercise of reasonable (from the perspective of a secured asset based lender) business judgment, based upon its consideration of any factor that it believes (a) could adversely affect the quantity, quality, mix or value of Collateral (including any applicable law that may inhibit collection of an Account), the enforceability or priority of Agent’s Liens, or the amount that Agent, the Co-Collateral Agent and Lenders could receive in liquidation of any Collateral; (b) suggests that any collateral report or financial information delivered by any Credit Party is incomplete, inaccurate or misleading in any material respect; (c) materially increases the likelihood of any Insolvency Proceeding involving an Credit Party or terms hereof.
(d) creates In case any co-collateral agent or could reasonably separate collateral agent shall become incapable of acting, resign or be expected removed, the right, title and interest in the Collateral and all rights, powers, duties and obligations of said co-collateral agent or separate collateral agent shall, so far as permitted by law, vest in and be exercised by the Collateral Agent unless and until a successor co-collateral agent or separate collateral agent shall be appointed pursuant to result in a Default or Event of Default. In exercising such judgment, Agent or Co-Collateral Agent, as applicable, may consider any factors that could increase the credit risk of lending to Borrowers or the security of the Collateralthis SECTION 27.
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