Collateral Agent. (a) The Administrative Agent and each of the Lenders hereby designates and appoints the Collateral Agent as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders. (b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates. (c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds. (d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements. (e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent. (f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing. (h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it. (i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act. (j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 4 contracts
Sources: Credit Agreement (ATD Corp), Incremental Amendment (American Tire Distributors Holdings, Inc.), Incremental Amendment (ATD Corp)
Collateral Agent. (a) The Administrative Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Lenders hereby designates and appoints the Collateral Agent as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, Indenture and the Collateral Documents Documents, and the Intercreditor AgreementsWilmington Trust, together with such powers National Association agrees to act as are reasonably incidental theretosuch. The provisions of this Section 12.11 13.03 are solely for the benefit of the Notes Collateral Agent and none of neither the Administrative Agent, any of the Lenders, the Borrower Trustee nor any of the Guarantors Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein other than as expressly provided in Section 12.03and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, Indenture or the Collateral Documents and the Intercreditor AgreementsDocuments, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into except those expressly set forth in this AgreementIndenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper person. The Collateral Agent may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements or otherwise exist against and the Collateral AgentDocuments, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference and subject to the Collateral Agent is Documents, the Collateral Agent:
(i) shall not intended be subject to connote any fiduciary or other implied (or express) obligations arising under agency doctrine duties, regardless of any applicable law. Instead, such term is used merely as a matter whether an Event of market custom, Default has occurred and is intended continuing;
(ii) shall not have any duty to create take any discretionary action or reflect only an administrative relationship between independent contracting parties. Except as exercise any discretionary powers, except discretionary rights and powers expressly otherwise provided in this Agreement, contemplated by the Collateral Agent shall have and may use its sole discretion with respect to exercising Documents or refraining from exercising any discretionary rights or taking or refraining from taking any actions which Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly entitled to take or assert under this Agreement, set forth in the Collateral Documents and the Intercreditor AgreementsDocuments, including the exercise of remedies pursuant have any duty to Article VIIIdisclose, and shall not be liable for the failure to disclose, any action so taken information relating to the Issuer or not taken shall be deemed consented any of its Affiliates that is communicated to or obtained by the Administrative Agent and the Lenders.
(b) None of person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall (i) not be liable for any action taken or omitted to be not taken by any it (A) with the consent or at the request of them under or the Trustee, (B) in connection with this Agreement or the transactions contemplated hereby (except for absence of its own gross negligence or willful misconductmisconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or under any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the Intercreditor Agreements performance or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate observance of any of the foregoingcovenants, contained in this agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any Agreementother agreement, instrument or document, or in the creation, perfection or priority of any certificate, report, statement or other document referred Lien purported to or provided for in, or received be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent under or in connection with, this Agreement, for the benefit of the Secured Parties pursuant to the Collateral Documents or the Intercreditor Agreementsany lien and/or any filing, or the validityrecording or otherwise creating, effectivenessperfecting, genuineness, enforceability continuing or sufficiency of this Agreement, the Collateral Documents maintaining any lien or the Intercreditor Agreementsperfection thereof. By accepting the Securities, or for any failure each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates prior paragraph and shall be under any obligation bound by those agreements to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliatesfullest extent permitted by law.
(cd) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for Subject to the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent provisions of the Administrative Agent. The Administrative Agent and the Lenders acknowledge thatapplicable Collateral Document, pursuant to such activitieseach Holder, the Collateral Agent or by its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor acceptance of the BorrowerSecurities, any such Guarantor or such Affiliate) and acknowledge agrees that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of execute and deliver the Collateral Agent Documents to advance funds.
(d) which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is authorized directed by each Holder to so hold, and directed shall be entitled to (i) enter into enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on subject to the terms as set forth in hereof, which shall instruct the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor AgreementsAgent.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this AgreementIndenture, except for any such proceeds or payments received by the Administrative Agent Trustee from the Collateral Agent pursuant to the terms of this AgreementIndenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent Trustee pursuant to Article VIII5, the Administrative Agent Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral AgentAgent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent Trustee or any of the Lenders Holders to assure that the Collateral exists or is owned by the Borrower any Issuer or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or of the Borrower Issuer’s or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, Indenture or any Collateral Document or the Intercreditor AgreementsDocuments, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent Trustee or any Lender Holder as to any of the foregoing.
(hg) No provision of Notwithstanding anything to the contrary in this Agreement, the Intercreditor Agreements Indenture or any Collateral Document shall require Document, neither the Collateral Agent (nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance priority of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (Collateral Documents or the Administrative security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured rights to itreimbursement and indemnification.
(i) The Collateral Agent (i) shall not be liable for any action is authorized and empowered to appoint one or more co-Collateral Agents as it takes deems necessary or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to actappropriate.
(j) Neither Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent nor to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Administrative Agent shall be liable for delays Liens securing the Second Lien Obligations or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited the Collateral Documents to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither which the Collateral Agent nor the Administrative Agent shall or Trustee is a party or to prevent any impairment of Collateral by any acts that may be liable for any indirect, special unlawful or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed in violation of the likelihood thereof Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and regardless such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the form Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of actionor compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 4 contracts
Sources: Indenture (Qwest Corp), Indenture (Qwest Corp), Indenture (Qwest Corp)
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Securities hereby designates and appoints authorize the appointment of the Collateral Agent as its agent the Trustee’s and the Holders’ Collateral Agent under this Agreementthe Security Documents, and the Trustee and each of the Holders by acceptance of the Securities hereby irrevocably authorize the Collateral Agent to enter into the Security Documents and the Intercreditor Agreements Agreement and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its their behalf under the provisions of this Agreement, the Collateral Security Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Security Documents and the Intercreditor AgreementsAgreement, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Security Documents and the Intercreditor AgreementsAgreement, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein, in the Security Documents to which the Collateral Agent is a party and the Intercreditor Agreement or as requested by the Majority Holders (subject to this Section 11.05), nor shall the Collateral Agent have or be deemed to have any trust or fiduciary relationship with the Administrative AgentTrustee, any Lender Holder, the Company or any GuarantorCollateral Grantor, either before or after the occurrence of an Event of Default, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this AgreementFor the avoidance of doubt, the Collateral Agent shall have no discretion under this Indenture, the Intercreditor Agreement or the Security Documents and may use its sole discretion with respect shall not be required to exercising make or refraining from exercising give any discretionary rights determination, consent, approval, request or taking direction without the written direction of the Holders of a majority in aggregate principal amount of the then outstanding Notes or refraining from taking any actions which the Trustee, as applicable. The Trustee is authorized and directed by the Holders and the Holders by acquiring the Securities are deemed to have authorized the Trustee, as applicable, to cause the Collateral Agent is expressly entitled to take or assert enter into and perform its obligations under this Agreement, the Collateral Security Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed by the Trustee and the Holders and the Holders by acquiring the Securities are deemed to have authorized the Collateral Agent, to (i) enter into the Collateral DocumentsSecurity Documents to which it is a party and the Intercreditor Agreement, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders Trustee and the Holders on the terms as set forth in the Collateral such Security Documents and the Intercreditor Agreements Agreement and (iviii) perform and observe its obligations and exercise its rights and powers under such Security Documents, including entering into amendments and other modifications permitted by the Collateral Documents and terms of this Indenture, the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any GuarantorSecurity Documents. Each Holder, including the commencement by its acceptance of any legal or equitable proceedingsa Security, is deemed to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant have consented and agreed to the terms of this each Security Document and the Intercreditor Agreement, as originally in effect and as amended, restated, replaced or (ii) payments modified from time to time in accordance with its terms or the terms of this Indenture. The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee or unless a written notice of any event which is in excess of fact such a Default is received by the amount required to be paid to Collateral Agent at the Administrative Agent pursuant to Article VIIIaddress specified in Section 13.01, and such notice references the Administrative Securities and this Indenture. The Collateral Agent shall promptly turn the same over take such action with respect to the Collateral Agent, in kind, and with such endorsements Default or Event of Default as may be required to negotiate requested by the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, Trustee in accordance with Article 9 of 6 or the Uniform Commercial Code can be perfected only by possessionMajority Holders (subject to this Section 11.05). Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation and makes no representation whatsoever to the Administrative Agent Trustee or any of the Lenders Holders as to assure the existence, genuineness, value or protection of the Collateral or the sufficiency of any Security Documents, or that the Collateral exists or is owned by any of the Borrower or any Guarantor Collateral Grantors or is cared for, protected, protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or of the Borrower or any GuarantorCollateral Grantor’s property constituting collateral Collateral intended to be subject to the Lien and security interest of the Collateral Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, disclosure or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, Indenture or any Collateral Document or the Intercreditor Agreementsother Security Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent Trustee or any Lender Holder as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither . For the avoidance of doubt, nothing herein shall require the Collateral Agent nor to file financing statements or continuation statements, to record any documents or instruments in any public office at any time or be responsible for perfection or maintaining the Administrative Agent perfection of the security interests purported to be created by the Security Documents and such responsibility shall be liable for delays or failures in performance resulting from acts beyond its controlsolely that of the Company. Such acts shall include but not be limited to acts Each of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent and the Trustee, each in its capacity as such, shall not be liable or responsible for the failure of the Company or any Collateral Grantor to maintain insurance on the Collateral, nor shall it be responsible for any loss due to the Administrative insufficiency of such insurance or by reason of the failure of any insurer to pay the full amount of any loss against which it may have insured to the Company or any Collateral Grantor, the Trustee, the Collateral Agent or any other Person. The provisions of Article 7, mutatis mutandis, shall apply to the Collateral Agent. Without limiting the generality of such preceding sentence, and notwithstanding anything to the contrary contained in this Indenture, the Intercreditor Agreement or the Security Documents, in the event the Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Collateral Agent shall not be liable for required to commence any indirectsuch action or exercise any remedy or to inspect or conduct any studies of any property under mortgages or take any such other action if the Collateral Agent has determined that the Collateral Agent may incur personal liability as a result of the presence at, special or consequential damages (included but not limited release on or from, the Collateral or such property, unless the Collateral Agent has received security or indemnity from the Holders in an amount and in a form all satisfactory to lost profits) whatsoeverthe Collateral Agent in its sole discretion, even protecting the Collateral Agent from all such liability. The Collateral Agent shall at any time be entitled to cease taking any action described above if it has been informed of no longer reasonably deems any indemnity, security or undertaking from the likelihood thereof and regardless of Company or the form of actionHolders to be sufficient.
Appears in 4 contracts
Sources: Indenture (Mbia Inc), Subordinated Indenture (Mbia Inc), Indenture (Mbia Inc)
Collateral Agent. Each Buyer hereby (ai) The Administrative Agent appoints Alto Opportunity Master Fund, SPC – Segregated Master Portfolio B, as the collateral agent hereunder and each of under the Lenders hereby designates and appoints the Collateral Agent as its agent under this Agreementother Security Documents (in such capacity, the “Collateral Documents Agent”), and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably (ii) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on its such Buyer’s behalf under in accordance with the provisions of this Agreement, the Collateral Documents terms hereof and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the thereof. The Collateral Agent shall not have, by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary reason hereof or of any of the provisions contained herein other than as expressly provided Security Documents, a fiduciary relationship in Section 12.03respect of any Buyer. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, Neither the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or any of its Affiliates officers, directors, employees or agents shall (i) be liable have any liability to any Buyer for any action taken or omitted to be taken by any of them under or in connection herewith or with this Agreement or any other Security Document except to the transactions contemplated hereby (except for extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or under consequential, arising from or in connection with any the performance by such Collateral Document Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunderSecurity Documents. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and its Affiliates may make loans to, issue letters of credit for shall be fully protected in so acting or refraining from acting) upon the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent instructions of the Administrative Agent. The Administrative Agent Required Holders, and the Lenders acknowledge thatsuch instructions shall be binding upon all holders of Notes; provided, pursuant to such activitieshowever, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under required to take any obligation to provide such information to action which, in the Administrative Agent or reasonable opinion of the Lenders. Nothing herein shall impose or imply any obligation on the part of Collateral Agent, exposes the Collateral Agent to advance funds.
(d) The Collateral Agent liability or which is authorized and directed contrary to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower any other Transaction Document or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateralapplicable law. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever be entitled to the Administrative Agent rely upon any written notices, statements, certificates, orders or other documents or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered telephone message believed by it in good faith to be genuine and in accordance correct and to have been signed, sent or made by the proper Person, and with the advice respect to all matters pertaining to this Agreement or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof other Transaction Documents and regardless its duties hereunder or thereunder, upon advice of the form of actioncounsel selected by it.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Genius Group LTD), Securities Purchase Agreement (Shuttle Pharmaceuticals Holdings, Inc.), Securities Purchase Agreement (Genius Group LTD)
Collateral Agent. The Trustee acknowledges that during the initial Interest Period of the Initial LIBOR Term Indexed Mode and any Interest Period thereafter while the initial Bondholder Agreement remains in effect, the Bondholder Representative (aif any) has, pursuant to Section 7.05, the power to take all actions and exercise all of the rights that the Trustee would otherwise have with respect to any guarantee of obligations (“Guarantee”) relating to the Bonds and any collateral (“Collateral”) securing obligations relating to the Bonds (in each case in accordance with the terms set forth in any agreement governing any Guarantee or Collateral), including, without limitation, the power to direct the exercise of remedies by any collateral agent appointed with respect to such Collateral. The Administrative Agent and Trustee shall have no right, responsibility or obligation to take any action with respect to any such Guarantee or Collateral or in connection with the exercise of remedies in connection therewith. To the extent required, each of the Lenders hereby designates Trustee and appoints the Issuer authorizes the appointment of any collateral agent in connection with the Collateral Agent as its and authorizes such collateral agent under this Agreement, to enter into any agreements it deems appropriate in connection with the Collateral Documents and any intercreditor arrangements or any remedial rights in connection therewith, including without limitation, any security agreement or intercreditor agreement (each a “Security Document”). In connection with the Intercreditor Agreements foregoing, and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit avoidance of the Notes Collateral Agent and none of the Administrative Agentdoubt, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, the Collateral Agent such collateral agent shall not have any duties or responsibilities hereunder nor shall obligations except those expressly set forth in the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any GuarantorSecurity Documents, and no implied covenants, functions, responsibilities, duties, obligations or liabilities its duties thereunder shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agentadministrative in nature. Without limiting the generality of the foregoing sentenceforegoing, any such collateral agent and its affiliates and the use partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of the term “agent” in this Agreement with reference such collateral agent and of its affiliates:
(i) shall not be subject to the Collateral Agent is not intended to connote any fiduciary or other implied duties, regardless of whether a default or Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or express) obligations arising under agency doctrine exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Security Documents and then only as directed in accordance with the terms thereof; provided that such collateral agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the collateral agent to liability or that is contrary to any Security Document or 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including for the exercise avoidance of remedies pursuant to Article VIIIdoubt any action that may be in violation of the automatic stay under Title 11 of the United States Code, as amended, and any action so taken similar Federal, state or not taken shall be deemed consented to by foreign law for the Administrative Agent and the Lenders.relief of debtors;
(biii) None of shall not, except as expressly set forth in any Security Document, have any duty or responsibility to disclose, and shall not be liable for the Collateral Agent failure to disclose, any information relating to the Borrower or any Affiliate thereof that is communicated to or obtained by such collateral agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.capacity;
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action taken or not taken by it takes under or omits in connection with any Security Document or the transactions contemplated thereby (A) with the consent or at the request of the secured party entitled to take direct the collateral agent under the applicable Security Document, (B) in good faith which it reasonably believes to be authorized the absence of its own gross negligence or within its rights or powers, or for any error of judgment made in good faith willful misconduct as determined by a Responsible Officercourt of competent jurisdiction by final and nonappealable judgment or (C) in reliance on a certificate of an authorized officer of the Borrower or any applicable guarantor of the obligations secured under such Security Document stating that such action is permitted by the terms of such Security Document, the collateral agent being deemed not to have knowledge of any default or Event of Default unless it and until notice describing such default or Event Default is proved that given in writing to the Collateral Agent was grossly negligent collateral agent by the in ascertaining accordance with the pertinent facts, terms of such Security Document; and
(iiv) shall not be liable responsible for interest on or have any money received duty or obligation to any holder of obligations secured under any Security Document or any other person to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Security Document, (B) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any default or Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Security Document or any other agreement, instrument or document, or the creation, perfection or priority of any lien purported to be created by it except as any Security Document, (E) the Collateral Agent may agree value or the sufficiency of any Collateral, or (F) the satisfaction of any condition or representation or warranty set forth in writing with any Security Document, other than to confirm receipt of items expressly required to be delivered to such collateral agent. Whether or not therein expressly so provided, every provision of this Bond Indenture, the Borrower (and money held in trust by Loan Agreement, the Collateral Agent need not be segregated from other funds except Credit Facilities, the Liquidity Facilities or related documents relating to the extent required by law), (iii) conduct or affecting the Collateral Agent may consult with counsel liability of its selection and the advice or opinion of affording protection to any such counsel as to matters of law collateral agent shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers subject to the Collateral Agent shall not be construed to impose duties to actprovision of this Article.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 3 contracts
Sources: Bond Indenture (SemGroup Corp), Bond Indenture (SemGroup Corp), Bond Indenture (SemGroup Corp)
Collateral Agent. (a) The Administrative Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Lenders hereby designates and appoints the Collateral Agent as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, Indenture and the Collateral Documents Documents, and the Intercreditor AgreementsWilmington Trust, together with such powers National Association agrees to act as are reasonably incidental theretosuch. The provisions of this Section 12.11 13.03 are solely for the benefit of the Notes Collateral Agent and none of neither the Administrative Agent, any of the Lenders, the Borrower Trustee nor any of the Guarantors Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein other than as expressly provided in Section 12.03and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, Indenture or the Collateral Documents and the Intercreditor AgreementsDocuments, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into except those expressly set forth in this AgreementIndenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper person. The Collateral Agent may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements or otherwise exist against and the Collateral AgentDocuments, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference and subject to the Collateral Agent is Documents, the Collateral Agent:
(i) shall not intended be subject to connote any fiduciary or other implied (or express) obligations arising under agency doctrine duties, regardless of any applicable law. Instead, such term is used merely as a matter whether an Event of market custom, Default has occurred and is intended continuing;
(ii) shall not have any duty to create take any discretionary action or reflect only an administrative relationship between independent contracting parties. Except as exercise any discretionary powers, except discretionary rights and powers expressly otherwise provided in this Agreement, contemplated by the Collateral Agent shall have and may use its sole discretion with respect to exercising Documents or refraining from exercising any discretionary rights or taking or refraining from taking any actions which Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly entitled to take or assert under this Agreement, set forth in the Collateral Documents and the Intercreditor AgreementsDocuments, including the exercise of remedies pursuant have any duty to Article VIIIdisclose, and shall not be liable for the failure to disclose, any action so taken information relating to the Issuer or not taken shall be deemed consented any of its Affiliates that is communicated to or obtained by the Administrative Agent and the Lenders.
(b) None of person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall (i) not be liable for any action taken or omitted to be not taken by any it (A) with the consent or at the request of them under or the Trustee, (B) in connection with this Agreement or the transactions contemplated hereby (except for absence of its own gross negligence or willful misconductmisconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or under any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the Intercreditor Agreements performance or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate observance of any of the foregoingcovenants, contained in this agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any Agreementother agreement, instrument or document, or in the creation, perfection or priority of any certificate, report, statement or other document referred Lien purported to or provided for in, or received be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Trustee and the Collateral Agent under or in connection with, this Agreement, pursuant to the Collateral Documents or the Intercreditor Agreementsany lien and/or any filing, or the validityrecording or otherwise creating, effectivenessperfecting, genuineness, enforceability continuing or sufficiency of this Agreement, the Collateral Documents maintaining any lien or the Intercreditor Agreementsperfection thereof. By accepting the Securities, or for any failure each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates prior paragraph and shall be under any obligation bound by those agreements to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliatesfullest extent permitted by law.
(cd) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for Subject to the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent provisions of the Administrative Agent. The Administrative Agent and the Lenders acknowledge thatapplicable Collateral Document, pursuant to such activitieseach Holder, the Collateral Agent or by its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor acceptance of the BorrowerSecurities, any such Guarantor or such Affiliate) and acknowledge agrees that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of execute and deliver the Collateral Agent Documents to advance funds.
(d) which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is authorized directed by each Holder to so hold, and directed shall be entitled to (i) enter into enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on subject to the terms as set forth in hereof, which shall instruct the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor AgreementsAgent.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent Trustee shall receive (i1) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this AgreementIndenture, except for any such proceeds or payments received by the Administrative Agent Trustee from the Collateral Agent pursuant to the terms of this AgreementIndenture, or (ii2) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent Trustee pursuant to Article VIII5, the Administrative Agent Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral AgentAgent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent Trustee or any of the Lenders Holders to assure that the Collateral exists or is owned by the Borrower any Issuer or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or of the Borrower Issuer’s or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, Indenture or any Collateral Document or the Intercreditor AgreementsDocuments, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent Trustee or any Lender Holder as to any of the foregoing.
(hg) No provision of Notwithstanding anything to the contrary in this Agreement, the Intercreditor Agreements Indenture or any Collateral Document shall require Document, neither the Collateral Agent (nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance priority of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (Collateral Documents or the Administrative security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured rights to itreimbursement and indemnification.
(i) The Collateral Agent (i) shall not be liable for any action is authorized and empowered to appoint one or more co-Collateral Agents as it takes deems necessary or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to actappropriate.
(j) Neither Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent nor to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Administrative Agent shall be liable for delays Liens securing the First Lien Obligations or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited the Collateral Documents to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither which the Collateral Agent nor the Administrative Agent shall or Trustee is a party or to prevent any impairment of Collateral by any acts that may be liable for any indirect, special unlawful or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed in violation of the likelihood thereof Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and regardless such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the form Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of actionor compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 3 contracts
Sources: Indenture (Qwest Corp), Indenture (Qwest Corp), Indenture (Qwest Corp)
Collateral Agent. (ai) The Administrative Corporation Service Company (“CSC”) is hereby appointed Collateral Agent under the Security Document and each of the Lenders Buyer hereby designates and appoints the Collateral Agent authorizes CSC, in such capacity, to act as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by in accordance with the terms of the Security Document and this Agreement, the Collateral Documents and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 4(d) are solely for the benefit of the Notes Collateral Agent Buyers and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors Company and its Affiliates shall not have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03thereof. Notwithstanding any provision to In performing its functions and duties under the contrary contained elsewhere in Security Document and this Agreement, the Collateral Documents Agent shall act solely as an agent of Buyers and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with the Company or any of its Affiliates. The Collateral Agent shall be obligated, and shall have the powers and rights, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement and the Intercreditor AgreementsSecurity Document. If any provision, duty, obligation or right under the Security Document is in conflict with any provision, duty, obligation or right under this Agreement then this Agreement shall control. The Collateral Agent shall not have any duties or responsibilities hereunder nor shall responsibilities, except those expressly set forth herein and in the Security Document and such powers as are incidental thereto.
(ii) Each Buyer irrevocably authorizes the Collateral Agent to take such action on such Buyer’s behalf and to exercise such powers, rights and remedies hereunder as are specifically delegated or granted to the Collateral Agent by the terms of this Agreement and the Security Document, together with such powers, rights and remedies as are reasonably incidental thereto. The Collateral Agent shall have only those duties and responsibilities that are expressly specified herein and therein. The Collateral Agent may exercise such powers, rights and remedies and perform such duties by or through its agents or employees. Notwithstanding any other provisions hereof or of any provision of the Security Document, the Collateral Agent shall not have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender Buyers or any Guarantorother person or entity, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, Agreement or the Collateral Documents and the Intercreditor Agreements Security Document or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement or the Security Document with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead.
(iii) The Collateral Agent may act in reliance upon any writing or instrument or signature which it, such term is used merely as a matter of market customin good faith, believes to be genuine, and is intended may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument and may assume that any person or entity purporting to create give any writing, notice, advice or reflect only an administrative relationship between independent contracting partiesinstruction in connection with the provisions hereof has been duly authorized to do so. Except as expressly otherwise provided The Collateral Agent may consult with counsel and shall be entitled to act, and shall be fully protected in this Agreementany action taken in good faith, in accordance with advice given by counsel. The Collateral Agent shall not be liable to the Company or any of its Affiliates, or the Buyers for any recitals or warranties herein or in the Security Document, nor for the effectiveness, enforceability, validity or due execution of the Security Document or any other agreement, document or instrument, nor to make any inquiry respecting the performance by any party of their respective obligations thereunder. Any such inquiry which may be made by the Collateral Agent shall not obligate it to make any further inquiry or to take any action.
(iv) The Collateral Agent shall not be required to take any action which, in the Collateral Agent’s sole and absolute judgment, could involve it in expense or liability unless furnished with security and indemnity which it deems, in its sole and absolute discretion, to be satisfactory. In the event the Collateral Agent receives conflicting instructions hereunder or under any of the Security Document, the Collateral Agent shall have and may use its sole discretion with respect to exercising or be fully protected in refraining from exercising any discretionary rights or taking or refraining from taking any actions which acting until such conflict is resolved to the satisfaction of the Collateral Agent. Neither the Collateral Agent is expressly entitled to take nor any of its directors, officers, employees or assert agents shall be liable, except for the Collateral Agent’s bad faith, negligence or willful misconduct as finally determined by a court of competent jurisdiction for any action taken or omitted under or in connection with this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and Security Document or any action so taken other instrument or not taken shall be deemed consented to by the Administrative Agent and the Lendersdocument in connection herewith or therewith.
(bv) None The Collateral Agent may resign or be removed by the Buyers (by a vote of the holders of a majority of the outstanding principal of the Notes) as Collateral Agent hereunder at any time upon at least thirty (30) days’ prior notice. If the Collateral Agent or at any of its Affiliates time shall resign, the Buyers shall (iby a vote of the holders of a majority of the outstanding principal of the Notes), within ten (10) days after such notice appoint a successor Collateral Agent which shall thereupon become the Collateral Agent hereunder and under the Security Document. If no successor Collateral Agent shall have been so appointed, and shall have accepted such appointment, within the above time frame the retiring Collateral Agent may appoint a successor. Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, such successor Collateral Agent shall be liable for entitled to receive from the retiring Collateral Agent such documents of transfer and assignment as such successor Collateral Agent may reasonably request, and shall thereupon succeed to and become vested with all rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations under this Agreement. After the effective date of any action retiring Collateral Agent’s resignation hereunder as collateral agent, the provisions of this section shall inure to its benefit as to any actions taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the it while it was Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(cvi) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under deemed to have knowledge or notice of the occurrence of any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of default unless the Collateral Agent has received a copy of a notice thereof from a Buyer referring to advance fundsthis Agreement and describing such default. In the event that the Collateral Agent receives such a notice, the Collateral Agent shall promptly give notice thereof to the other Buyers and to the Company. The Collateral Agent shall be permitted to take such action with respect to any default as provided in this Agreement and the Security Document.
(dvii) The Collateral Agent is authorized Each Buyer, by its acceptance of the benefits hereof and directed to (i) enter into of the Collateral DocumentsSecurity Document, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested have no right individually to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, realize upon any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed by each Buyer that in respect all rights and remedies may be exercised solely by the Collateral Agent for the benefit of the Buyer in accordance with the provisions of this Agreement and the Security Document in the Collateral Agent’s sole and absolute discretion.
(viii) Upon any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to its creditors upon any dissolution or winding-up or total or partial liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings including, without limitation, all amounts received by the Collateral Agent on behalf of the Buyers, or received by the Buyers, shall be paid by the in accordance with its outstanding secured Obligations (as defined in the Security Document) to each of the Buyers in accordance with clause (xii) below. Any and all amounts referred to in this clause (viii)or any other amounts or proceeds of collateral received by any of the Buyers shall be held in trust for the benefit of all of the Buyers, shall be immediately delivered by the applicable Buyers to the Collateral Agent in the amount and form received, and shall be apportioned, paid over or delivered among the Buyers in accordance with clause (xi) of this Agreement.
(ix) Except as provided by law, the security interests in the Collateral shall be for the ratable benefit of the Buyers, shall rank equally in priority, none being senior or subordinate to any other. No Buyer shall contest the validity, perfection, priority or enforceability of the lien of any other Buyer in the Collateral. Each Buyer, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral under this Agreement, the Security Document, pursuant to applicable law, or otherwise, it being understood and agreed by each Buyer that all rights and remedies under this Agreement, the Security Document, pursuant to applicable law, or otherwise, may be exercised solely by the Collateral Agent for the benefit of Buyers in accordance with the provisions of this Agreement and the Security Document.
(x) Upon any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding-up or total or partial liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings (each such payment, distribution and/or amount is hereafter referred to as a “Collateral Proceeds Amount”), shall be disbursed in accordance with clause (xi) below.
(xi) Any and all Collateral Proceeds Amount and any other amounts or proceeds of Collateral received by any of the Buyers shall be held in trust for the benefit of all of the Buyers, shall be immediately delivered by the applicable Buyer to the Collateral Agent in the amount and form received, and, subject to the rights to any of the Collateral Proceeds Amount or such other amounts or proceeds of Collateral of the holders of the other security interests in the Collateral referred to in clause (x) above, shall be apportioned, paid over or delivered as follows: first, to the Collateral Agent for the payment or reimbursement of any expenses and fees of, or any act, omission, or event related theretoother amount payable to, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or under the Security Document, and next, among the Buyers on a pro rata basis to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and each in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers Company’s outstanding obligations to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed each of the likelihood thereof and regardless of the form of actionBuyers which are secured pursuant to this Agreement.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Applied Dna Sciences Inc), Securities Purchase Agreement (Applied Dna Sciences Inc), Securities Purchase Agreement (Applied Dna Sciences Inc)
Collateral Agent. (a) The Administrative Agent and each of the Lenders hereby designates and appoints the Collateral Agent as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken taken, suffered, or omitted to be taken by any of them under it in good faith and believed by it to be authorized or in connection with within the discretion or rights or powers conferred upon it by this Agreement or any other Loan Document. The rights, privileges, protections, immunities and benefits given to the transactions contemplated hereby (except for Collateral Agent, including its own gross negligence or willful misconduct) or under or right to be indemnified, are extended to, and shall be enforceable by, the Collateral Agent in connection with each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder. The Collateral Agent may request that any Collateral Document Obligor Party or the Intercreditor Agreements Administrative Agent deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative other Loan Documents, which certificate may be signed by any person authorized to sign such a certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded. The permissive right of the Collateral Agent to take or any Lender for any recital, statement, representation, warranty, covenant refrain from taking action hereunder or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of under any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received Loan Documents shall not be construed as a duty. Money held by the Collateral Agent under this Agreement or under any of the other Loan Documents need not be segregated from other funds except to the extent required by law. The Collateral Agent shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Borrower. The Collateral Agent may refrain from taking any action in any jurisdiction if, in its opinion, the taking of such action in that jurisdiction would be contrary to any law of that jurisdiction or of the State of New York, it would otherwise render it liable to any Person in that jurisdiction or the State of New York, the taking of such action would require it to obtain any license or otherwise qualify to do business or subject it to taxation in such jurisdiction, it would not have the power or authority to take such action in such jurisdiction by virtue of any law in that jurisdiction or in connection with, this Agreement, the Collateral Documents or the Intercreditor AgreementsState of New York, or it is determined by any court or other competent authority in that jurisdiction or in the validity, effectiveness, genuineness, enforceability State of New York that it does not have such power or sufficiency of authority. Anything in this Agreement, the Collateral Documents Agreement or the Intercreditor Agreements, or for in any failure of the BorrowerLoan Documents notwithstanding, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of in no event shall the Collateral Agent be liable for special, indirect, consequential or punitive loss or damage of any kind whatsoever (including but not limited to loss of its Affiliates shall be under any obligation to profit), even if the Administrative Collateral Agent or any Lender to ascertain or to inquire has been advised as to the observance likelihood of such loss or performance of any damage and regardless of the agreements contained in, or conditions of, this Agreement, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records form of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agentaction. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except liable for any such proceeds error of judgment made in good faith by an officer or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms officers of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, unless it shall be conclusively determined in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose a final non-appealable judgment by a court of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify competent jurisdiction that the Collateral Agent thereof, and, promptly upon was grossly negligent or acting with willful misconduct in ascertaining the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) pertinent facts. The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at hereunder.
(b) Beyond the request or direction exercise of Lenders (or the Administrative Agent reasonable care in the case custody thereof and as otherwise specifically set forth herein, the Collateral Agent shall not have any duty as to any of the Collateral Agent) if it shall have reasonable grounds for believing that repayment in its possession or control or in the possession or control of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes agent or omits to take in good faith which it reasonably believes to be authorized bailee or within its rights any income thereon or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters preservation of law shall be full rights against prior parties or any other rights pertaining thereto and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to actresponsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Collateral Agent shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent in good faith.
(jc) Neither The Collateral Agent shall not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes gross negligence or willful misconduct, as determined by the final nonappealable decision of a court of competent jurisdiction, on the part of the Collateral Agent, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of any Obligor Party to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral.
(d) Any Person into which the Collateral Agent nor may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Collateral Agent shall be a party, or any Person succeeding to all or substantially all of the corporate agency or corporate trust business of the Collateral Agent shall be the successor of the Collateral Agent hereunder and under the other Loan Documents, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
(e) The Collateral Agent shall be entitled to rely upon any certificate, notice or other document (including any facsimile or electronic mail) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper Person or Persons (without any duty (express or implied) of the Collateral Agent to verify the genuineness or correctness of any fact stated therein or propriety of the signatory or deliverer or otherwise the validity or enforceability thereof), and upon advice and statements of legal counsel, independent accountants and other experts selected by it. The Collateral Agent shall in all cases (including when any action by the Collateral Agent alone is authorized hereunder, if the Collateral Agent elects in its sole discretion to obtain instructions from the Administrative Agent, the Secured Parties or the Required Lenders) be fully protected in acting or in refraining from acting hereunder or under any Security Document pursuant to the written instructions of the Administrative Agent, the Secured Parties or the Required Lenders and any action taken or failure to act pursuant thereto shall be binding on the Administrative Agent shall be liable for delays or failures and the Secured Parties. Whenever in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts the administration of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither this Agreement the Collateral Agent nor shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Collateral Agent (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon instructions from the Administrative Agent, the Secured Parties or the Required Lenders.
(f) The Collateral Agent may refuse to perform any duty or exercise any power or right unless it receives indemnity reasonably satisfactory to it against any loss, liability or expense.
(g) Notwithstanding anything else to the contrary herein, whenever reference is made in this Agreement or any other Loan 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 Collateral 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 Collateral Agent, it is understood that in all cases the Collateral Agent shall be liable for fully justified in failing or refusing to take any indirect, special such action under this Agreement or consequential damages (included but not limited to lost profits) whatsoever, even such other Loan Document if it has been informed shall not have received written directions of the likelihood thereof Administrative Agent, Required Lenders or the Secured Parties in respect of such matter. Further, the Collateral Agent shall be permitted to request that all instructions and regardless directions of the form Administrative Agent, Required Lenders or the Secured Parties provided to the Collateral Agent hereunder or under the other Security Documents be in writing (and, in such a case, the Collateral Agent shall be excused from following any such instructions or directions that are not in writing). This provision is intended solely for the benefit of actionthe Collateral Agent and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim, or confer any rights or benefits on any party hereto.
(h) The agreements in this Section 8.08 shall survive the payment in full of the Secured Obligations and the termination of this Agreement and the Security Documents and the resignation or removal of the Collateral Agent and the exercise of Write-Down and Conversion Powers by a Resolution Authority.
Appears in 3 contracts
Sources: Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.)
Collateral Agent. (a) The Administrative Agent and each of the Lenders hereby designates and appoints the Collateral Agent as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreementsother Loan Documents, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for , and in connection therewith hereby authorizes the benefit of Administrative Agent to execute and deliver the Notes Joinder to Intercreditor Agreement and Joinder to Collateral Agent and none of Agency Agreement whereby the Administrative Agent, any on behalf of itself and the Lenders, agrees to be bound by the Borrower nor any terms of the Guarantors shall have Security Agreement, the Intercreditor Agreement, the Collateral Agency Agreement and the other Collateral Documents in their capacities as a “Secured Party” under and as defined in the Security Agreement. In this connection, the Collateral Agent, as “Collateral Agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Collateral Agent pursuant to the Collateral Documents for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights as a third party beneficiary of any and remedies thereunder at the direction of the Secured Parties (under and as defined in the Security Agreement) required pursuant to the terms of the Collateral Documents, shall be entitled to the benefits of all provisions contained of this Article IX and Article X (as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein other than as expressly provided in Section 12.03with respect thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, Agreement and the Collateral Documents and the Intercreditor AgreementsDocuments, the Collateral Agent shall not have any duties or responsibilities hereunder or thereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender the Lenders or any GuarantorLoan Party, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, Agreement and the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement or any other Loan Document with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable lawLaw. 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 otherwise provided in this AgreementAgreement or the other Loan Documents, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents Agreement and the Intercreditor Agreementsother Loan Documents, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 3 contracts
Sources: Credit Agreement (Polymer Group Inc), Credit Agreement (Polymer Group Inc), Senior Secured Bridge Credit Agreement (Polymer Group Inc)
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Securities hereby designates and appoints authorize the appointment of the Collateral Agent as the Trustee’s and the Holders’ Collateral Agent under the Security Documents and in its agent under this Agreement, capacity as mortgagee and security trustee pursuant to the Collateral Documents Rig Mortgage, and the Intercreditor Agreements and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Securities hereby irrevocably authorizes authorize the Collateral Agent to enter into the Security Documents and to take such action on its their behalf under the provisions of this Agreement, the Collateral Security Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents Indenture and the Intercreditor AgreementsSecurity Documents, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture and the Security Documents, the duties of the Collateral Documents Agent shall be ministerial and the Intercreditor Agreementsadministrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the Security Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or fiduciary relationship with the Administrative AgentTrustee, any Lender Holder, the Company, any Collateral Grantor or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, The Trustee is authorized and directed by the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents Holders and the Intercreditor AgreementsHolders by acquiring the Securities are deemed to have authorized the Trustee, including the exercise of remedies pursuant as applicable, to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of cause the Collateral Agent to advance funds.
(d) enter into and perform its obligations under the Security Documents. The Collateral Agent is authorized and directed by the Trustee and the Holders and the Holders by acquiring the Securities are deemed to have authorized the Collateral Agent, to (i) enter into the Collateral DocumentsSecurity Documents to which it is a party, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders Trustee and the Holders on the terms as set forth in the Collateral such Security Documents and the Intercreditor Agreements and (iviii) perform and observe its obligations and exercise its rights and powers under the Collateral Documents such Security Documents, including entering into amendments, supplements and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so other modifications permitted by the Required Lendersterms of this Indenture or the Security Documents. Each Holder, take or cause by its acceptance of a Security, is deemed to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant have consented and agreed to the terms of each Security Document, as originally in effect and as amended, restated, replaced, supplemented or modified from time to time in accordance with its terms or the terms of this Agreement, or (ii) payments from Indenture. Each of the Holders by acquiring the Securities is hereby deemed to have directed the Trustee to appoint the Collateral Agent in excess as its mortgagee and security trustee to receive, hold, administer and enforce the Collateral Rig Mortgage covering the Collateral Rig, as contemplated under this Indenture. The Collateral Agent shall not be deemed to have knowledge or notice of the amount required to be paid to occurrence of any Default or Event of Default, unless the Administrative Agent pursuant to Article VIII, the Administrative Collateral Agent shall promptly turn have received written notice from the same over to Trustee or unless a written notice of any event which is in fact such a Default is received by the Collateral Agent, Agent at the address specified in kindSection 14.01, and such notice references the Securities and this Indenture. The Collateral Agent shall take such action with respect to such endorsements Default or Event of Default as may be required to negotiate requested by the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, Trustee in accordance with Article 9 6 or the Holders of a majority in aggregate principal amount of the Uniform Commercial Code can be perfected only by possessionSecurities (subject to this Section 12.05). Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation and makes no representation whatsoever to the Administrative Agent Trustee or any of the Lenders Holders as to assure the existence, genuineness, value or protection of the Collateral or the sufficiency of any Security Documents, or that the Collateral exists or is owned by any of the Borrower or any Guarantor Collateral Grantors or is cared for, protected, protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or of the Borrower or any GuarantorCollateral Grantor’s property constituting collateral Collateral intended to be subject to the Lien and security interest of the Collateral Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, disclosure or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, Indenture or any Collateral Document or the Intercreditor Agreementsother Security Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent Trustee or any Lender Holder as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither . For the avoidance of doubt, nothing herein shall require the Collateral Agent nor to file financing statements or continuation statements, to record any documents or instruments in any public office at any time or be responsible for perfection or maintaining the Administrative Agent perfection of the security interests purported to be created by the Security Documents and such responsibility shall be liable for delays or failures in performance resulting from acts beyond its controlsolely that of the Company. Such acts shall include but not be limited to acts Each of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor and the Administrative Agent Trustee, each in its capacity as such, shall not be liable or responsible for the failure of the Company or any Collateral Grantor to maintain insurance on the Collateral, nor shall it be responsible for any indirect, special loss due to the insufficiency of such insurance or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed by reason of the likelihood thereof and regardless failure of any insurer to pay the form full amount of actionany loss against which it may have insured to the Company or any Collateral Grantor, the Trustee, the Collateral Agent or any other Person. The provisions of Article 7, mutatis mutandis, shall apply to the Collateral Agent.
Appears in 3 contracts
Sources: Indenture (Transocean Ltd.), Indenture (Transocean Ltd.), Indenture (Transocean Ltd.)
Collateral Agent. (a) The Administrative Agent and each Each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture, the Collateral Documents Documents, the First Lien Intercreditor Agreement and the Junior Lien Intercreditor Agreements and the Administrative Agent Agreement, if any, and each of the Lenders Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Collateral Agent to take such action on its their behalf under the provisions of this AgreementIndenture, the Collateral Documents Documents, the First Lien Intercreditor Agreement and the Junior Lien Intercreditor Agreements Agreement, if any, and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture, the Collateral Documents, the First Lien Intercreditor Agreement and the Junior Lien Intercreditor Agreement, if any, and consents and agrees to the terms of the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement, if any, and each Collateral Documents and Document, as the Intercreditor Agreementssame may be in effect or may be amended, together restated, supplemented or otherwise modified from time to time in accordance with such powers as are reasonably incidental theretotheir respective terms. The Collateral Agent accepts such appointment and agrees to act as such on the express conditions contained in this Section 11.07. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Section 12.11 are solely for Indenture, the benefit of First Lien Intercreditor Agreement, the Notes Junior Lien Intercreditor Agreement, if any, and the Collateral Documents, and the exercise by the Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained or remedies set forth herein other than as expressly provided in Section 12.03and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Documents Documents, the First Lien Intercreditor Agreement and the Junior Lien Intercreditor AgreementsAgreement, if any, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder, the Issuer or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Documents Documents, the First Lien Intercreditor Agreement and the Junior Lien Intercreditor Agreements Agreement, if any, or otherwise exist exist, against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the The Collateral Agent or may perform any of its Affiliates duties under this Indenture, the Collateral Documents, the First Lien Intercreditor Agreement or the Junior Lien Intercreditor Agreement, if any, by or through receivers, agents, employees or attorneys-in-fact and shall be entitled to advice of counsel of its selection concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by such counsel. The Collateral Agent shall not be responsible for the negligence or misconduct of any receiver, agent, employee or attorney-in-fact that it selects as long as such selection was made in good faith and with due care.
(c) The Collateral Agent shall not (i) be liable for any action taken or omitted to be taken by any of them it under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document Document, the First Lien Intercreditor Agreement or the Junior Lien Intercreditor Agreements Agreement, if any, or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Issuer or any other Guarantor or Affiliate of any Guarantor, or any officer or Affiliate of any of the foregoingOfficer thereof, contained in this Indenture, the Collateral Documents, the First Lien Intercreditor Agreement, or any the Junior Lien Intercreditor Agreement, if any, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this AgreementIndenture, the Collateral Documents Documents, the First Lien Intercreditor Agreement or the Junior Lien Intercreditor AgreementsAgreement, if any, or the validity, effectiveness, genuineness, enforceability or sufficiency of this AgreementIndenture, the Collateral Documents Documents, the First Lien Intercreditor Agreement or the Junior Lien Intercreditor AgreementsAgreement, if any, or for any failure of the BorrowerIssuer, any Guarantor or any other party to this AgreementIndenture, the Collateral Documents Documents, the First Lien Intercreditor Agreement or the Junior Lien Intercreditor Agreements Agreement, if any, to perform its obligations hereunder or thereunder. None of the The Collateral Agent or any of its Affiliates shall not be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this AgreementIndenture, the Collateral Documents Documents, the First Lien Intercreditor Agreement or the Junior Lien Intercreditor Agreements Agreement, if any, or to inspect the properties, books, or records of the BorrowerIssuer, any Guarantor or any Guarantor’s of their Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized shall be entitled to rely, and directed shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (i) enter including, without limitation, counsel to the Issuer or any Guarantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, (ii) enter into the First Lien Intercreditor AgreementsAgreement or the Junior Lien Intercreditor Agreement, (iii) bind if any, unless it shall first receive such written direction or consent of the Lenders on Holders of a majority in aggregate principal amount of the terms as set forth Notes and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents Documents, the First Lien Intercreditor Agreement or the Junior Lien Intercreditor Agreement, if any, in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor AgreementsHolders.
(e) The Administrative Collateral Agent agrees that it shall not (and shall not be obliged to)deemed to have knowledge or notice of the occurrence of any default or Event of Default, and shall not instruct unless a Responsible Officer of the Collateral Agent toshall have received written notice from the Trustee or the Issuer referring to this Indenture, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement describing such Event of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any Default and stating that such notice is a “notice of the Collateral. If at any time or times the Administrative default.” The Collateral Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments take such action with respect to such Event of Default as may be requested in accordance with, and subject to the Obligations arising underprovisions of, or relating to, this Agreement, except for any such proceeds or payments received Article 6 by the Administrative Agent from Trustee or the Collateral Agent pursuant Holders of a majority in aggregate principal amount of the Notes (subject to this Section 11.07 and the terms of this the First Lien Intercreditor Agreement and any Junior Lien Intercreditor Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent).
(f) The Administrative Collateral Agent is each Lender’s may resign at any time upon 30 days’ advance written notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possessionto its appointment as Collateral Agent. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify If the Collateral Agent thereofresigns under this Indenture, and, promptly upon the Collateral Agent’s request therefor Issuer shall deliver such Collateral appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent or otherwise deal with such Collateral (as stated in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any notice of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretoresignation), the Collateral Agent may act in any manner it may deem appropriateappoint, in its sole discretion given at the Collateral Agent’s own interest direction of the Holders of a majority of the aggregate principal amount of the Notes then outstanding, a successor collateral agent, subject to the consent of the Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default). If no successor collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the Collateral and that notice of resignation) the Collateral Agent shall have no other duty or liability whatsoever be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the Administrative Agent or any Lender acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to any all the rights, powers and duties of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the retiring Collateral Agent) if it , and the term “Collateral Agent” shall have reasonable grounds for believing that repayment of mean such funds is not assured to it.
(i) The successor collateral agent, and the retiring Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powersAgent’s appointment, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except powers and duties as the Collateral Agent may agree in writing with shall be terminated. After the Borrower retiring Collateral Agent’s resignation hereunder, the provisions of this Section 11.07 (and money held in trust by the Collateral Agent need not be segregated from other funds except Section 7.07 hereof) shall continue to the extent required by law), (iii) the Collateral Agent may consult with counsel of inure to its selection benefit and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the retiring Collateral Agent shall not by reason of such resignation be construed deemed to impose duties be released from liability as to act.
(j) Neither any actions taken or omitted to be taken by it while it was the Collateral Agent nor under this Indenture, the Administrative Agent shall be liable for delays First Lien Intercreditor Agreement or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionJunior Lien Intercreditor Agreement.
Appears in 2 contracts
Sources: Restructuring Support Agreement (Akumin Inc.), Indenture (Akumin Inc.)
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Securities hereby designates and appoints authorize the appointment of the Collateral Agent as its the Trustee’s and the Holders’ collateral agent under this Agreement, the Security Documents and in its capacity as mortgagee and security trustee pursuant to the Collateral Documents Rig Mortgage, and the Intercreditor Agreements and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Securities hereby irrevocably authorizes authorize the Collateral Agent to enter into the Security Documents and to take such action on its their behalf under the provisions of this Agreement, the Collateral Security Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents Indenture and the Intercreditor AgreementsSecurity Documents, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture and the Security Documents, the duties of the Collateral Documents Agent shall be ministerial and the Intercreditor Agreementsadministrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the Security Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, The Trustee is authorized and directed by the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents Holders and the Intercreditor AgreementsHolders by acquiring the Securities are deemed to have authorized the Trustee, including the exercise of remedies pursuant as applicable, to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of cause the Collateral Agent to advance funds.
(d) enter into and perform its obligations under the Security Documents. The Collateral Agent is authorized and directed by the Trustee and the Holders and the Holders by acquiring the Securities are deemed to have authorized the Collateral Agent, to (i) enter into the Collateral DocumentsSecurity Documents to which it is a party, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders Trustee and the Holders on the terms as set forth in the Collateral such Security Documents and the Intercreditor Agreements and (iviii) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce exercise its rights and powers under this Agreement or against the Borrower or any Guarantorsuch Security Documents, including the commencement of any legal or equitable proceedingsentering into amendments, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) supplements and other modifications permitted by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all Indenture or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.Security
Appears in 2 contracts
Sources: Indenture (Transocean Ltd.), Indenture (Transocean Ltd.)
Collateral Agent. (a) The Administrative U.S. Bank National Association shall initially act as Collateral Agent and each of shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Lenders hereby designates and appoints the Collateral Agent as its agent under this Agreement, the Collateral Security Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents and or the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions neither the Collateral Agent nor any of this Section 12.11 are solely its officers, directors, employees or agents shall be liable for the benefit failure to demand, collect or realize upon any of the Notes Collateral Agent and none of the Administrative Agent, or for any of the Lenders, the Borrower nor delay in doing so or shall be under any of the Guarantors shall have any rights as a third party beneficiary obligation to sell or otherwise dispose of any Notes Collateral upon the request of any other Person or to take any other action whatsoever with regard to the provisions contained herein other than as expressly provided in Section 12.03Notes Collateral or any part thereof. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Intercreditor Agreements or the Security Documents, the duties of the Collateral Documents Agent shall be ministerial and the Intercreditor Agreementsadministrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth in this Indenture, in the Intercreditor Agreements and in the Security Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder, the Issuer or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements or the Security Documents or shall otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” or “Agent” in this Agreement Indenture, the Intercreditor Agreements and the Security Documents with reference to the Collateral 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, custom and is intended to create or reflect only an administrative relationship between independent contracting parties. Except The Collateral Agent shall be accountable only for amounts that it actually receives as expressly otherwise provided in this Agreementa result of the exercise of such powers, and neither the Collateral Agent shall have and may use nor any of its sole discretion with respect to exercising officers, directors, employees or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken agents shall be deemed consented responsible for any act or failure to act hereunder, except for its own willful misconduct or gross negligence (as determined by the Administrative Agent and the Lendersa final, non-appealable order of a court of competent jurisdiction).
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Security Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders Holders on the terms as set forth in the Collateral Security Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Security Documents and the Intercreditor Agreements.
(c) If the Issuer or any Guarantors Incur any obligations in respect of any First Priority Lien Obligations at any time when no intercreditor agreement with respect thereto is in effect or at any time when Indebtedness constituting First Priority Lien Obligations entitled to the benefit of an existing intercreditor agreement is concurrently retired, the Issuer shall deliver 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 First Priority Lien Obligations so Incurred, and the Trustee and the Collateral Agent shall (and are hereby authorized and directed to) enter into such Intercreditor Agreement, bind the Holders on the terms set forth therein and perform and observe their obligations thereunder.
(d) The Collateral Agent shall act pursuant to the instructions of the Holders and the Trustee with respect to the Security Documents and the Notes Collateral. For the avoidance of doubt, the Collateral Agent shall have no discretion under this Indenture, the Intercreditor Agreements or the Security Documents and shall not be required to make or give any determination, consent, approval, request or direction without the written direction of the requisite Holders or the Trustee, as applicable. After the occurrence of an Event of Default, the Trustee may direct the Collateral Agent in connection with any action required or permitted by this Indenture, the Security Documents or the Intercreditor Agreements.
(e) The Administrative Collateral Agent agrees that it shall not (and shall not be obliged to)deemed to have knowledge or notice of the occurrence of any Default or Event of Default, and shall not instruct unless the Collateral Agent toshall have received written notice from the Trustee, unless specifically requested a Holder or the Issuer referring to do so by the Required Lendersthis Indenture, take describing such Default or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement Event of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any Default and stating that such notice is a “notice of the Collateraldefault”. If at any time or times the Administrative The Collateral Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments take such action with respect to the Obligations arising under, such Default or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms Event of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements Default as may be required requested by the Trustee or the Holders of a majority in aggregate principal amount of the Securities subject to negotiate the same to the Collateral Agentthis Article 11.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements Indenture or any Collateral Security Document shall require the Collateral Agent (or the Administrative AgentTrustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders Holders (or the Administrative Agent Trustee in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it. Notwithstanding anything to the contrary contained in this Indenture, the Intercreditor Agreements or the Security Documents, in the event the Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Notes Collateral, the Collateral Agent shall not be required to commence any such action, exercise any remedy, inspect or conduct any studies of any property or take any such other action if the Collateral Agent has determined that the Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Notes Collateral or such property of any hazardous substances unless the Collateral Agent has received security or indemnity from the Holders in an amount and in a form all satisfactory to the Collateral Agent in its sole discretion, protecting the Collateral Agent from all such liability. The Collateral Agent shall at any time be entitled to cease taking any action described in this Section 11.09(f) if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient.
(ig) The Collateral Agent (i) shall not be liable responsible in any manner to any of the Trustee or any Holder for any action it takes the validity, effectiveness, genuineness, enforceability or omits to take in good faith which it reasonably believes to be authorized sufficiency of this Indenture, the Security Documents or within its rights or powers, the Intercreditor Agreements or for any error failure of judgment made in good faith by a Responsible Officerthe Issuer, unless it is proved any Guarantor or any other party to this Indenture, the Security Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. The Collateral Agent shall not be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents or the Intercreditor Agreements or to inspect the properties, books or records of the Issuer or the Guarantors.
(h) The parties hereto and the Holders hereby agree and acknowledge that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not assume, be liable responsible for interest on or otherwise be obligated for any money received by it except liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs (including any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any environmental law as a result of this Indenture, the Intercreditor Agreements or the Security Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that, in the exercise of its rights under this Indenture, the Intercreditor Agreements and the Security Documents, the Collateral Agent may agree in writing with hold or obtain indicia of ownership primarily to protect the Borrower (and money held in trust by security interest of the Collateral Agent need not be segregated from other funds except to in the extent required Notes Collateral and that any such actions taken by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed as or otherwise constitute any participation in the management of such Notes Collateral.
(i) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by two Officers pursuant to impose duties this Section 11.09(i) (a “Security Document Order”), the Collateral Agent is hereby authorized to actexecute and enter into, and shall execute and enter into, without the further consent of any Holder or the Trustee, any Security Document to be executed after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is a Security Document Order referred to in, this Section 11.09(i) and (ii) instruct the Collateral Agent to execute and enter into such Security Document. Any such execution of a Security Document shall be at the direction and expense of the Issuer, upon delivery to the Collateral Agent of an Officers’ Certificate and an Opinion of Counsel stating that all conditions precedent to the execution and delivery of such Security Document have been satisfied. The Holders, by their acceptance of the Securities, hereby authorize and direct the Collateral Agent to execute such Security Documents.
(j) Neither The Collateral Agent’s resignation or removal shall be governed by provisions equivalent to Section 7.07(a), Section 7.07(b), Section 7.07(c), Section 7.07(d) and Section 7.07(f).
(k) The Collateral Agent shall be entitled to all of the protections, immunities, indemnities, rights and privileges of the Trustee set forth in this Indenture, and all such protections, immunities, indemnities, rights and privileges shall apply to the Collateral Agent nor in its roles under any Security Document or the Administrative Agent shall be liable for delays Intercreditor Agreements, whether or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionexpressly stated therein.
Appears in 2 contracts
Collateral Agent. Notwithstanding anything to the contrary herein, the following provisions shall govern the Collateral Agent's rights, powers, obligations and duties under this Security Agreement:
(a) The Administrative Agent and each Each of the Lenders Holders and the Trustee hereby designates and appoints the U.S. Bank National Association to act as Collateral Agent as its agent under this Agreement, the Collateral Documents Security Agreement and the Intercreditor Agreements other Note Documents to which it is a party, and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action actions on its behalf under the provisions of this Agreement, the Collateral Security Agreement and such other Note Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents Security Agreement and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03Note Documents. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Security Agreement or any other Note Documents and the Intercreditor Agreements, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have responsibilities, except those expressly set forth in this Security Agreement or be deemed to have such other Note Documents or any fiduciary relationship with any parties to the Administrative Agent, any Lender First-Lien Documents or any GuarantorSecond-Lien Note Documents, and no implied covenants, functions, responsibilities, duties, obligations functions or liabilities responsibilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements Security Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of In no event shall the Collateral Agent have any obligation to inquire or investigate as to the correctness, veracity, or content of any instruction received from any other Note Documents. In no event shall the Collateral Agent have any liability in respect of any such instruction received by it and relied on with respect to any action or omission taken pursuant thereto.
(c) With respect to the Collateral Agent's duties under this Security Agreement or any of the Note Documents, the Collateral Agent may act through its Affiliates attorneys, accountants, experts and such other professionals as the Collateral Agent deems necessary, advisable or appropriate and shall not be responsible for the misconduct or negligence of any attorney, accountant, expert or other such professional appointed with due care.
(d) Neither the Collateral Agent nor any of its experts, officers, directors, employees, agents, attorneys-in-fact or affiliates shall be (i) be liable for any action lawfully taken or omitted to be taken by any of them it under or in connection with this Security Agreement or any of the transactions contemplated hereby Note Documents (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to for any recitals, statements, representations or warranties (other than its own recitals, statements, representations or warranties) made in this Security Agreement or any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, other Note Documents or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, Security Agreement or any of the Collateral Note Documents or for the Intercreditor Agreementsvalue, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, Security Agreement or any of the Collateral Note Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor Grantors or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements Person to perform its their obligations hereunder or and thereunder. None of the The Collateral Agent or any of its Affiliates shall not be under any obligation to the Administrative Agent or any Lender Person to ascertain or to inquire as to (i) the observance or performance of any of the agreements contained in, or conditions of, this Agreement, Security Agreement or any of the Collateral Note Documents or the Intercreditor Agreements or to inspect the properties, books, books or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral DocumentsGrantors, (ii) enter into the Intercreditor Agreementswhether or not any representation or warranty made by any Person in connection with this Security Agreement or any Note Documents is true, (iii) bind the Lenders on performance by any Person of its obligations under this Security Agreement or any of the terms as set forth in the Collateral Note Documents and the Intercreditor Agreements and or (iv) perform and observe the breach of or default by any Person of its obligations under this Security Agreement or any of the Collateral Documents and the Intercreditor AgreementsNote Documents.
(e) The Administrative Collateral Agent agrees that it shall not (and shall not be obliged to)bound to (i) account to any Person for any sum or the profit element of any sum received for its own account; (ii) disclose to any other Person any information relating to the Person if such disclosure would, and shall not instruct or might, constitute a breach of any law or regulation or be otherwise actionable at the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take suit of any Person; (iii) be under any fiduciary duties or cause to be taken any action to enforce its rights under obligations other than those for which express provision is made in this Security Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, in any of the Collateral. If other Second Priority Debt Documents to which it is a party; or (iv) be required to take any action that it reasonably believes, based on advice of counsel, is in conflict with any applicable law, this Security Agreement or any of the other Second Priority Debt Documents, or any order of any court or administrative agency;
(f) The Collateral Agent shall be authorized to but shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or monitoring or maintaining the Administrative perfection of any security interest in the Collateral. It is expressly agreed, to the maximum extent permitted by applicable law, that the Collateral Agent shall receive have no responsibility for (i) by payment, foreclosure, set-off or otherwise, taking any proceeds of Collateral or necessary steps to preserve rights against any payments Person with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from taking any action to protect against any diminution in value of the Collateral, but, in each case (A) subject to the requirement that the Collateral Agent in excess of the amount required may not act or omit to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, take any action if such act or omission would constitute gross negligence or willful misconduct and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(fB) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon may do so and all expenses reasonably incurred in connection therewith shall be part of the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructionsSecured Obligations.
(g) The Collateral Agent shall have no obligation whatsoever not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent in good faith, except to the Administrative extent of the Collateral Agent's gross negligence or willful misconduct.
(h) The Collateral Agent shall not be responsible for, nor incur any liability with respect to, (i) the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the security interest in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part under this Security Agreement or any of the Lenders other Note Documents, except to assure that the Collateral exists extent such action or is owned by omission constitutes gross negligence or willful misconduct on the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that part of the Collateral Agent’s Liens have been properly , (ii) the validity or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest sufficiency of the Collateral or any agreement or assignment contained therein, (iii) the validity of the title of the Grantors to the Collateral, (iv) insuring the Collateral or (v) the payment of taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral.
(i) Notwithstanding anything in this Security Agreement or any of the Note Documents to the contrary, (i) in no event shall the Collateral Agent or any officer, director, employee, representative or agent of the Collateral Agent be liable under or in connection with this Security Agreement or any of the Note Documents for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including but not limited to lost profits or loss of opportunity, whether or not foreseeable, even if the Collateral Agent has been properly advised of the possibility thereof and completely listed or delivered, as regardless of the case may be, or form of action in which such damages are sought; and (ii) the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at Collateral Agent shall be afforded all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authoritiespowers, immunities and powers granted or available indemnities set forth in this Security Agreement in all of the other Note Documents to which it is a signatory as if such rights, powers, immunities and indemnities were specifically set out in each such Note Documents. In no event shall the Collateral Agent pursuant be obligated to this Agreementinvest any amounts received by it hereunder.
(j) The Collateral Agent shall be entitled conclusively to rely, and shall be fully protected in relying, upon any note, writing, resolution, request, direction, certificate, notice, consent, affidavit, letter, cablegram, telegram, telecopy, email, telex or teletype message, statement, order or other document or conversation believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and/or upon advice and/or statements of legal counsel, independent accountants and other experts selected by the Collateral Document Agent and need not investigate any fact or the Intercreditor Agreements, it being understood matter stated in any such document. Any such statement of legal counsel shall be full and agreed that complete authorization and protection in respect of the Collateral, any action taken or suffered by it hereunder in accordance therewith. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Security Agreement or any actof the other Note Documents (i) if such action would, omission, or event related thereto, in the reasonable opinion of the Collateral Agent (which may act be based on the opinion of legal counsel), be contrary to applicable law or any of the Note Documents, (ii) if such action is not provided for in this Security Agreement or any manner it may deem appropriateof the other Note Documents, (iii) if, in connection with the taking of any such action hereunder or under any of the Note Documents that would constitute an exercise of remedies hereunder or under any of the Note Documents it shall not first be indemnified to its sole discretion given satisfaction by the Holders against any and all risk of nonpayment, liability and expense that may be incurred by it, its agents or its counsel by reason of taking or continuing to take any such action, or (iv) if, notwithstanding anything to the contrary contained in this Security Agreement, in connection with the taking of any such action that would constitute a payment due under any agreement or document, it shall not first have received from the Holders or the Grantors funds equal to the amount payable. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Security Agreement or any of the other Note Documents in accordance with a request of the requisite percentage of Holders, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the other Holders and the Trustee.
(k) The Collateral Agent shall not be deemed to have actual, constructive, direct or indirect knowledge or notice of the occurrence of any Default unless and until the Collateral Agent’s own interest in Agent has received a written notice or a certificate from the Collateral and Grantors stating that the a Default has occurred. The Collateral Agent shall have no other duty obligation whatsoever either prior to or liability whatsoever after receiving such notice or certificate to the Administrative Agent inquire whether a Default has in fact occurred and shall be entitled to rely conclusively, and shall be fully protected in so relying, on any notice or any Lender as certificate so furnished to any of the foregoing.
(h) it. No provision of this Security Agreement, the Intercreditor Agreements Agreement or any Collateral Document of the Note Documents shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take under this Security Agreement, any action hereunder or thereunder or take any action at of the request or direction of Lenders (other Note Documents or the Administrative Agent in the case exercise of the Collateral Agent) any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability including an advance of moneys necessary to perform work or to take the action requested is not reasonably assured to it, the Collateral Agent may decline to act unless it receives indemnity satisfactory to it in its sole discretion, including an advance of moneys necessary to take the action requested. The Collateral Agent shall be under no obligation or duty to take any action under this Security Agreement or any of the other Note Documents or otherwise if taking such action (i) would subject the Collateral Agent to a tax in any jurisdiction where it is not then subject to a tax or (ii) would require the Collateral Agent to qualify to do business in any jurisdiction where it is not then so qualified.
(il) Any corporation into which the Collateral Agent may be merged, or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which the Collateral Agent shall be a party, shall become a Collateral Agent under this Security Agreement without the execution or filing of any paper or any further act on the part of the parties hereto except for written notice to the other parties hereto.
(m) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the may resign as Collateral Agent was grossly negligent in ascertaining at any time upon written notice to the pertinent factsHolders, (ii) shall not Trustee and the Grantors and may be liable for interest on removed at any money received time with or without cause by it except as the Requisite Secured Parties, with any such resignation or removal to become effective only upon the appointment of a successor Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counselunder this Section. The grant of permissive rights or powers to If the Collateral Agent shall not provide notice of its resignation or be construed to impose duties to act.
removed as Collateral Agent, then the Requisite Secured Parties shall (j) Neither and if no such successor shall have been appointed within 45 days of the Second Priority Collateral Agent's resignation or removal, the Collateral Agent nor may) appoint a successor Collateral Agent which successor agent shall, in the Administrative case of any appointment by the Collateral Agent, be reasonably acceptable to the Requisite Secured Parties, and the former Collateral Agent's rights, powers and duties as Collateral Agent shall be liable for delays terminated, without any other or failures further act or deed on the part of such former Collateral Agent (except that the resigning Collateral Agent shall deliver all Collateral then in performance resulting from acts beyond its controlpossession to the successor Collateral Agent and shall execute and deliver to the successor Collateral Agent such instruments of assignment and transfer and other similar documents as such successor Collateral Agent shall deem necessary or advisable (at the joint and several expense of the Grantors)). Such acts After any retiring Collateral Agent's resignation or removal hereunder as Collateral Agent, the provisions of this Security Agreement shall include but inure to its benefit as to any actions taken or omitted to be taken by it while it was Second Collateral Agent. In the event that a successor Collateral Agent is not be limited to acts appointed within the time period specified in this Section following the provision of Goda notice of resignation or removal of the Collateral Agent, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor or any other Second Priority Secured Party may petition a court of competent jurisdiction for the Administrative appointment of a successor Collateral Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed at the joint and several expense of the likelihood thereof and regardless of the form of actionGrantors).
Appears in 2 contracts
Sources: Second Lien Collateral Agreement (Paperweight Development Corp), Second Lien Collateral Agreement (Paperweight Development Corp)
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Securities hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreement and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Securities hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Security Documents and the Intercreditor AgreementsAgreement, together and consents and agrees to the terms of the Intercreditor Agreement and each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as such powers as are reasonably incidental theretoon the express conditions contained in this Section 11.08. The provisions of this Section 12.11 11.08 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower Holders nor any of the Guarantors Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0311.03. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provision of this Indenture, the Intercreditor Agreement and the Security Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Security Documents and the Intercreditor AgreementsAgreement, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 2 contracts
Sources: Indenture (Scientific Games Corp), Indenture (Scientific Games Corp)
Collateral Agent. (a) The Administrative Agent and each of the Lenders Each Investor hereby designates and irrevocably appoints the Collateral Agent as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action actions on its behalf under the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreementshereof, together with such actions and powers as are reasonably incidental thereto. The provisions Person serving as the Collateral Agent hereunder shall have the same rights and powers in its capacity as an Investor as any other investor and may exercise the same as though it were not the Collateral Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of this Section 12.11 are solely for business with the benefit Company or any Subsidiary or other Affiliate thereof as if it were not the Collateral Agent hereunder. The Collateral Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the Notes foregoing, (i) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and none of is continuing, (ii) the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights as a third party beneficiary of any of the provisions contained herein other than as and powers expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in contemplated by this Agreement, the Collateral Documents and the Intercreditor Agreements(iii) except as expressly set forth herein, the Collateral Agent shall not have any duties or responsibilities hereunder nor duty to disclose, and shall not be liable for the Collateral Agent have or be deemed failure to have any fiduciary relationship with the Administrative Agentdisclose, any Lender information relating to the Company or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference Subsidiaries that is communicated to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to obtained by the Administrative Agent and the Lenders.
(b) None of the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall (i) not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall be deemed not to have knowledge of any Event of Default unless and until written notice thereof is given to the Collateral Agent by the Company or an Investor (and, promptly after its receipt of any such notice, it shall give each Investor and the Company notice thereof), and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (a) any statement, warranty or representation made in or in connection with any Secured Transaction Document, (b) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (c) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein, (d) the validity, enforceability, effectiveness or genuineness thereof or any other agreement, instrument or other document or (e) the satisfaction of any condition set forth in herein, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent. The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing reasonably believed by it to be genuine and to have been signed or sent by the proper Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and reasonably believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Grantors), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Collateral Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub agents appointed by the Collateral Agent, provided that no such delegation shall serve as a release of the Collateral Agent or waiver by the Company of any rights hereunder. The Collateral Agent and any such sub agent may perform any and all its duties and exercise its rights and powers through their respective affiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such sub agent and to the affiliates of the Collateral Agent and any such sub agent, and shall apply to their respective activities acting for the Collateral Agent. Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any time by notifying the Investors and the Company. Upon any such resignation, the Investor holding a majority of the principal amount of the Senior Secured Notes shall have the right to appoint a successor. If no successor shall have been so appointed by the Investor and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Investor holding a majority of the principal amount of the Senior Secured Notes, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York, or an affiliate of any such bank. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. After the Collateral Agent’s resignation hereunder, the provisions of this Article shall continue in effect for the benefit of such retiring Collateral Agent, its sub agents and their respective affiliates in respect of any actions taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any while it was acting as Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct)Agent. Each Investor acknowledges that it has, or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of independently and without reliance upon the Collateral Agent or any of other Investors and based on such documents and information as it has deemed appropriate, made its Affiliates shall be under any obligation own credit analysis and decision to enter into the Administrative Agent or any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained inSecured Transaction Documents. Each Investor also acknowledges that it will, or conditions of, this Agreement, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder independently and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, reliance upon the Collateral Agent or its Affiliates may receive any other Investors and based on such documents and information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested from time to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, continue to make its own decisions in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty taking or liability whatsoever to the Administrative Agent not taking action under or based upon any Secured Transaction Document, any related agreement or any Lender as to any of the foregoingdocument furnished thereunder.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 2 contracts
Sources: Guarantee and Security Agreement (NeuMedia, Inc.), Guarantee and Security Agreement (NeuMedia, Inc.)
Collateral Agent. (a) The Administrative Collateral Agent and each has been appointed to act as Collateral Agent hereunder by Lenders and, by their acceptance of the Lenders hereby designates benefits hereof, the other Secured Parties. The Collateral Agent shall be obligated, and appoints shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement, the Credit Agreement and the Intercreditor Agreement In furtherance of the foregoing provisions of this Section, each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Secured Parties in accordance with the terms of this Section. Collateral Agent may resign at any time by giving thirty (30) days’ prior written notice thereof to Lenders and the Grantors, and Collateral Agent may be removed at any time with or without cause by an instrument or concurrent instruments in writing delivered to the Grantors and Collateral Agent signed by the Requisite Lenders. Upon any such notice of resignation or any such removal, Requisite Lenders shall have the right, upon five (5) Business Days’ notice to the Administrative Agent, to appoint a successor Collateral Agent. Upon the acceptance of any appointment as its agent Collateral Agent hereunder by a successor Collateral Agent, that successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Collateral Agent under this Agreement, and the retiring or removed Collateral Agent under this Agreement shall promptly (i) transfer to such successor Collateral Agent all sums, Securities and other items of Collateral held hereunder, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Collateral Agent under this Agreement, and (ii) execute and deliver to such successor Collateral Agent or otherwise authorize the filing of such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor Collateral Agent of the security interests created hereunder, whereupon such retiring or removed Collateral Agent shall be discharged from its duties and obligations under this Agreement. After any retiring or removed Collateral Agent’s resignation or removal hereunder as the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under Agent, the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and Agreement shall inure to exercise such powers and perform such duties its benefit as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them it under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by while it was the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliateshereunder.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 2 contracts
Sources: Pledge and Security Agreement (J Crew Group Inc), Pledge and Security Agreement (J Crew Group Inc)
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements, together and consents and agrees to the terms of the Intercreditor Agreements and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as such powers as are reasonably incidental theretoon the express conditions contained in this Section 12.9. The provisions of this Section 12.11 12.9 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower Holders nor any of the Guarantors Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0312.4. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provision of this Indenture, the Intercreditor Agreements and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the .
(b) The Collateral Agent shall have and may use perform any of its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert duties under this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the Intercreditor Agreementsrespective officers, including the exercise directors, employees, agents, advisors and attorneys-in-fact of remedies pursuant such Person and its Affiliates, (a “Related Person”) and shall be entitled to Article VIIIadvice of counsel concerning all matters pertaining to such duties, and any action so taken or not taken shall be deemed consented entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the Administrative Agent and the Lendersnegligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(bc) None of the Collateral Agent or any of its Affiliates respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Issuer, the Co-Issuer or any Guarantor, or any officer other Grantor or Affiliate of any of the foregoingGrantor, or any Officer or Related Person thereof, contained in this Indenture, or any Agreementother Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor Grantor or any other party to this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor Grantor or any GuarantorGrantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized shall be entitled to rely, and directed shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (i) enter including, without limitation, counsel to the Issuers or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral DocumentsAgent shall be fully justified in failing or refusing to take any action under this Indenture, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and (iv) perform all liability and observe its obligations expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents and or the Intercreditor AgreementsAgreements in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e) The Administrative Collateral Agent agrees that it shall not (and shall not be obliged to)deemed to have knowledge or notice of the occurrence of any Default or Event of Default, and shall not instruct unless a Trust Officer of the Collateral Agent toshall have received written notice from the Trustee or the Issuers referring to this Indenture, unless specifically requested to do so by the Required Lenders, take describing such Default or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement Event of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any Default and stating that such notice is a “notice of the Collateral. If at any time or times the Administrative default.” The Collateral Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments take such action with respect to the Obligations arising under, such Default or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms Event of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements Default as may be required requested by the Trustee in accordance with Article VI or the Holders of a majority in aggregate principal amount of the Notes (subject to negotiate the same to the Collateral Agentthis Section 12.9).
(f) The Administrative Collateral Agent is each Lender’s may resign at any time by notice to the Trustee and the Issuers, such resignation to be effective upon the acceptance of a successor agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possessionto its appointment as Collateral Agent. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify If the Collateral Agent thereofresigns under this Indenture, and, promptly upon the Collateral Agent’s request therefor Issuers shall deliver such Collateral appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent or otherwise deal with such Collateral (as stated in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any notice of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretoresignation), the Collateral Agent may act in any manner it may deem appropriateappoint, in its sole discretion given after consulting with the Collateral Agent’s own interest Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Issuers pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the Collateral and that notice of resignation) the Collateral Agent shall have no other duty or liability whatsoever be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the Administrative Agent or any Lender acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to any all the rights, powers and duties of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the retiring Collateral Agent) if it , and the term “Collateral Agent” shall have reasonable grounds for believing that repayment of mean such funds is not assured to it.
(i) The successor collateral agent, and the retiring Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powersAgent’s appointment, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except powers and duties as the Collateral Agent may agree in writing with shall be terminated. After the Borrower retiring Collateral Agent’s resignation hereunder, the provisions of this Section 12.9 (and money held in trust by the Collateral Agent need not be segregated from other funds except Section 7.7) shall continue to the extent required by law), (iii) the Collateral Agent may consult with counsel of inure to its selection benefit and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the retiring Collateral Agent shall not by reason of such resignation be construed deemed to impose duties be released from liability as to act.
(j) Neither any actions taken or omitted to be taken by it while it was the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionunder this Indenture.
Appears in 2 contracts
Sources: Indenture (Restaurant Brands International Limited Partnership), Indenture (Restaurant Brands International Limited Partnership)
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints authorize the appointment of the Collateral Agent as its the Trustee’s and the Holders’ collateral agent under this Agreement, the Collateral Documents Agreements, and the Intercreditor Agreements and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes authorize the Collateral Agent to take such action on its their behalf under the provisions of this the Collateral Agreements, including the Collateral Trust and Intercreditor Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementAmended Indenture, the Collateral Documents Trust and Intercreditor Agreement and the Intercreditor other Collateral Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None The Collateral Agent may resign and its successor appointed in accordance with the terms of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Trust and Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent Trustee is authorized and directed by the Holders and the Holders by acquiring the Notes are deemed to have authorized the Trustee, as applicable, to (i1) enter into the Collateral DocumentsTrust and Intercreditor Agreement, (ii) enter into the Intercreditor Agreements, (iii2) bind the Lenders Holders on the terms as set forth in the Collateral Documents Trust and the Intercreditor Agreements and Agreement, (iv3) perform and observe its obligations and exercise its rights and powers under the Collateral Documents Trust and Intercreditor Agreement, including entering into amendments permitted by the terms of this Amended Indenture, the Collateral Trust and Intercreditor Agreements.
Agreement or the other Collateral Agreements and (e4) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct cause the Collateral Agent to, unless specifically requested to do so enter into and perform its obligations under the Collateral Agreements. The Collateral Agent is authorized and directed by the Required Lenders, take or cause Trustee and the Holders and the Holders by acquiring the Notes are deemed to be taken any action to enforce its rights under this Agreement or against have authorized the Borrower or any Guarantor, including the commencement of any legal or equitable proceedingsCollateral Agent, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by paymententer into the other Collateral Agreements to which it is a party, foreclosure(ii) bind the Trustee and the Holders on the terms as set forth in such Collateral Agreements and (iii) perform and observe its obligations and exercise its rights and powers under such Collateral Agreements, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received including entering into amendments permitted by the Administrative Agent from terms of this Amended Indenture or the Collateral Agent pursuant Agreements. Each Holder, by its acceptance of a Note, is deemed to have consented and agreed to the terms of this the Collateral Trust and Intercreditor Agreement and each other Collateral Agreement, as originally in effect and as amended, restated, replaced, supplemented or modified from time to time in accordance with its terms or the terms of this Amended Indenture. Each of the Trustee and the Holders by acquiring the Notes is hereby deemed to (iiA) payments from agree that it will be bound by and will take no actions contrary to the provisions of the Collateral Agent in excess Trust and Intercreditor Agreement and the Security Agreement and (B) acknowledge that it has received copies of the amount required to Collateral Trust and Intercreditor Agreement and that the exercise of certain of the Trustee’s rights and remedies hereunder may be paid to the Administrative Agent pursuant to Article VIIIsubject to, and restricted by, the Administrative Agent shall promptly turn the same over to provisions of the Collateral AgentTrust and Intercreditor Agreement. NOTWITHSTANDING ANY OTHER PROVISION CONTAINED IN THIS AMENDED INDENTURE, in kindIN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THIS AMENDED INDENTURE AND THE COLLATERAL TRUST AND INTERCREDITOR AGREEMENT, and with such endorsements as may be required to negotiate the same to the Collateral AgentTHE COLLATERAL TRUST AND INTERCREDITOR AGREEMENT, AS APPLICABLE, SHALL CONTROL.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(gd) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent Trustee or any of the Lenders Holders to assure that the Collateral exists or is owned by the Borrower Company or any Guarantor of the Collateral Grantors or is cared for, protected, protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or of the Borrower or any Guarantorapplicable Collateral Grantor’s property constituting collateral Collateral intended to be subject to the Lien and security interest of the Collateral Documents Agreements has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(he) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither . For the avoidance of doubt, nothing herein shall require the Collateral Agent nor to file financing statements or continuation statements, or be responsible for maintaining the Administrative Agent security interests purported to be created by the Collateral Agreements and such responsibility shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed solely that of the likelihood thereof and regardless of the form of actionCompany.
Appears in 2 contracts
Sources: Supplemental Indenture, Indenture
Collateral Agent. (a) The Administrative Agent has been appointed to act as Agent hereunder by Lenders pursuant to the terms and each provisions of Section 9.8 of the Lenders hereby designates Credit Agreement and, by their acceptance of the benefits hereof, the other Secured Parties. Agent shall be obligated, and appoints shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement and the Credit Agreement. In furtherance of the foregoing provisions of this Section, each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by Agent for the benefit of Secured Parties in accordance with the terms of this Section. Agent may resign at any time by giving prior written notice thereof to Lenders and the Grantors. Upon any such notice of resignation, Agent immediately shall be discharged from its duties and obligations under this Agreement and Requisite Lenders shall have the right, upon notice to Agent, to appoint a successor Agent. Upon the acceptance of any appointment as its agent Agent hereunder by a successor Agent, that successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent under this Agreement, the Collateral Documents and the Intercreditor Agreements retiring Agent under this Agreement shall promptly at the Grantors’ expense (i) transfer to such successor Agent all sums and other items of Collateral held hereunder, together with all records and other documents necessary or appropriate in connection with the Administrative Agent and each performance of the Lenders hereby irrevocably authorizes duties of the Collateral successor Agent under this Agreement, and (ii) execute and deliver to such successor Agent or otherwise authorize the filing of such amendments to financing statements, and take such action on its behalf under other actions, as may be necessary in connection with the assignment to such successor Agent of the security interests created hereunder. After any retiring Agent’s resignation hereunder as Agent, the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and Agreement shall inure to exercise such powers and perform such duties its benefit as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative while it was Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agenthereunder.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit and Guaranty Agreement (Euramax International, Inc.), Pledge and Security Agreement (Euramax International, Inc.)
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Agreement, Indenture and the Collateral Documents and the Intercreditor Agreements and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, Indenture and the Collateral Documents and the Intercreditor Agreements Documents, and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, Indenture and the Collateral Documents Documents, and consents and agrees to the Intercreditor Agreementsterms of each Collateral Document, together as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with such powers as are reasonably incidental theretotheir respective terms. The Collateral Agent agrees to act as such on the express conditions contained in this Section 12.07. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Section 12.11 are solely for Indenture and the benefit of Collateral Documents, and the Notes exercise by the Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained or remedies set forth herein other than as expressly provided in Section 12.03and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture and the Collateral Documents, the duties of the Collateral Documents Agent shall be ministerial and the Intercreditor Agreementsadministrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the Collateral Documents, to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any Guarantorgrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, Indenture and the Collateral Documents and the Intercreditor Agreements Documents, or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the The Collateral Agent or may perform any of its Affiliates shall (i) be liable for any action taken duties under this Indenture or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the Intercreditor Agreementsrespective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunderopinion given by legal counsel. None of the The Collateral Agent shall not be responsible for the negligence or any of its Affiliates shall be under any obligation to the Administrative Agent or any Lender to ascertain or to inquire as to the observance or performance misconduct of any of the agreements contained receiver, agent, employee, attorney-in, -fact or conditions of, this Agreement, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s AffiliatesRelated Person that it selects as long as such selection was made in good faith and with due care.
(c) The Collateral Agent shall be entitled to rely, and its Affiliates may make loans toshall be fully protected in relying, issue letters of credit for the account ofupon any writing, accept deposits fromresolution, acquire equity interests in and generally engage in any kind of bankingnotice, trustconsent, financial advisorycertificate, underwritingaffidavit, letter, telegram, facsimile, certification, telephone message, statement, or other business with communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the Borrowerproper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuers or any Guarantor other grantor), independent accountants and their Affiliates as though it was not other experts and advisors selected by the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under bound to make any obligation to provide such information to investigation into the Administrative Agent facts or the Lendersmatters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. Nothing herein shall impose or imply any obligation on the part of Except as otherwise expressly provided herein, the Collateral Agent shall be fully justified in failing or refusing to advance fundstake any action under this Indenture or the Collateral Documents unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Collateral Documents in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(d) The Collateral Agent is authorized and directed shall not be deemed to (i) enter into have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Collateral DocumentsAgent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article VI or the Holders of a majority in aggregate principal amount of the Notes (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents subject to this Section 12.07 and the First Lien Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor AgreementsAgreement).
(e) The Administrative Collateral Agent agrees that it may resign at any time by 30 days’ written notice to the Trustee and the Issuers, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral Agent resigns under this Indenture, the Issuers shall not appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent (and as stated in the notice of resignation), the Trustee, at the direction of the Holders of a majority of the aggregate principal amount of the Notes then outstanding, may appoint a successor collateral agent, subject to the consent of the Issuers (which consent shall not be obliged to), unreasonably withheld and which shall not instruct the Collateral Agent to, unless specifically requested be required during a continuing Event of Default). If no successor collateral agent is appointed and consented to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent Issuers pursuant to the terms preceding sentence within thirty (30) days after the intended effective date of this Agreement, or resignation (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest stated in the Collateral and that notice of resignation) the Collateral Agent shall have no other duty or liability whatsoever be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the Administrative Agent or any Lender acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to any all the rights, powers and duties of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the retiring Collateral Agent) if it , and the term “Collateral Agent” shall have reasonable grounds for believing that repayment of mean such funds is not assured to it.
(i) The successor collateral agent, and the retiring Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powersAgent’s appointment, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except powers and duties as the Collateral Agent may agree in writing with shall be terminated. After the Borrower retiring Collateral Agent’s resignation hereunder, the provisions of this Section 12.07 (and money held in trust by the Collateral Agent need not be segregated from other funds except Section 7.07 and 7.11 hereof) shall continue to the extent required by law), (iii) the Collateral Agent may consult with counsel of inure to its selection benefit and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the retiring Collateral Agent shall not by reason of such resignation be construed deemed to impose duties be released from liability as to act.
(j) Neither any actions taken or omitted to be taken by it while it was the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionunder this Indenture.
Appears in 2 contracts
Sources: Indenture (Organon & Co.), Indenture (Organon & Co.)
Collateral Agent. (a) The Administrative Agent Issuer and each of the Lenders Holders by acceptance of the Securities, and each beneficial owner of an interest in a Security, hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture, the Collateral Documents Security Documents, the First Lien Intercreditor Agreement and any other Acceptable Intercreditor Agreement and the Intercreditor Agreements Issuer directs and the Administrative Agent authorizes and each of the Lenders Holders by acceptance of the Securities hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Security Documents and the First Lien Intercreditor Agreements Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture, the Security Documents, the First Lien Intercreditor Agreement any other Acceptable Intercreditor Agreement, and consents and agrees to the terms of the First Lien Intercreditor Agreement, each Security Document and any other Acceptable Intercreditor Agreement, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms or the terms of this Indenture. The Collateral Documents and Agent agrees to act as such on the Intercreditor Agreements, together with such powers as are reasonably incidental theretoexpress conditions contained in this Section 10.08. The provisions of this Section 12.11 10.08 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower Holders nor any of the Guarantors Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provision of this Indenture, the First Lien Intercreditor Agreement any other Acceptable Intercreditor Agreement and/or the applicable Security Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein other than as expressly provided in Section 12.03and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Security Documents, the First Lien Intercreditor Agreement and any other Acceptable Intercreditor Agreement, the duties of the Collateral Documents Agent shall be ministerial and the Intercreditor Agreementsadministrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Documents and Security Documents, the First Lien Intercreditor Agreements Agreement or any other Acceptable Intercreditor Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None The Collateral Agent may perform any of its duties under this Indenture, the Security Documents or the First Lien Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) Neither the Collateral Agent or nor any of its Affiliates Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Security Document or the First Lien Intercreditor Agreements Agreement or any other Acceptable Intercreditor Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Issuer or any Guarantor, or any officer other Grantor or Affiliate of any of the foregoingGrantor, or any Officer or Related Person thereof, contained in this Indenture, or any Agreementother Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this AgreementIndenture, the Collateral Security Documents or the First Lien Intercreditor AgreementsAgreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this AgreementIndenture, the Collateral Documents Security Documents, the First Lien Intercreditor Agreement or the any other Acceptable Intercreditor AgreementsAgreement, or for any failure of the Borrower, any Guarantor Grantor or any other party to this AgreementIndenture, the Collateral Documents Security Documents, the First Lien Intercreditor Agreement or the any other Acceptable Intercreditor Agreements Agreement to perform its obligations hereunder or thereunder. None of the No Collateral Agent or nor any of its Affiliates their respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this AgreementIndenture, the Collateral Documents Security Documents, the First Lien Intercreditor Agreement or the any other Acceptable Intercreditor Agreements Agreement or to inspect the properties, books, or records of the Borrower, any Guarantor Grantor or any GuarantorGrantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized shall be entitled (in the absence of bad faith) to rely, and directed shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (i) enter including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and/or other experts and advisors selected by the Collateral Agent. No Collateral Agent shall be bound to make any investigation into the Collateral Documentsfacts or matters stated in any resolution, (ii) enter into the Intercreditor Agreementscertificate, (iii) bind the Lenders on the terms as set forth in statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. Unless otherwise expressly required hereunder or pursuant to any Security Document, the Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the First Lien Intercreditor Agreement unless it shall first receive such written advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Securities as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected from claims by any Holders in acting, or in refraining from acting, under this Indenture, the Security Documents or the First Lien Intercreditor Agreements Agreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and (iv) perform such request and observe its obligations under any action taken or failure to act pursuant thereto shall be binding upon all of the Collateral Documents and the Intercreditor AgreementsHolders.
(e) The Administrative No Collateral Agent agrees that it shall not (and shall not be obliged to)deemed to have knowledge or notice of the occurrence of any Default or Event of Default, and shall not instruct unless a Trust Officer of the Collateral Agent toshall have received written notice from the Trustee or the Issuer referring to this Indenture, unless specifically requested to do so by the Required Lenders, take describing such Default or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement Event of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any Default and stating that such notice is a “notice of the Collateral. If at any time or times the Administrative default.” The Collateral Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments take such action with respect to the Obligations arising under, such Default or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms Event of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements Default as may be required requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Securities (subject to negotiate the same to the Collateral Agentthis Section 10.08).
(f) The Administrative Collateral Agent is each Lender’s may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possessionto its appointment as Collateral Agent. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify If the Collateral Agent thereofresigns under this Indenture, and, promptly upon the Collateral Agent’s request therefor Issuer shall deliver such Collateral appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent or otherwise deal with such Collateral (as stated in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any notice of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretoresignation), the Collateral Agent may act in any manner it may deem appropriateappoint, in its sole discretion given after consulting with the Collateral Agent’s own interest Trustee, subject to the consent of the Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the Collateral and that notice of resignation) the Collateral Agent shall have no other duty or liability whatsoever be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the Administrative Agent or any Lender acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to any all the rights, powers and duties of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the retiring Collateral Agent) if it , and the term “Collateral Agent” shall have reasonable grounds for believing that repayment of mean such funds is not assured to it.
(i) The successor collateral agent, and the retiring Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powersAgent’s appointment, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except powers and duties as the Collateral Agent may agree in writing with shall be terminated. After the Borrower retiring Collateral Agent’s resignation hereunder, the provisions of this Section 10.08 (and money held in trust by the Collateral Agent need not be segregated from other funds except Section 7.06) shall continue to the extent required by law), (iii) the Collateral Agent may consult with counsel of inure to its selection benefit and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the retiring Collateral Agent shall not by reason of such resignation be construed deemed to impose duties be released from liability as to act.
(j) Neither any actions taken or omitted to be taken by it while it was the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionunder this Indenture.
Appears in 2 contracts
Sources: Indenture (CLARIVATE PLC), Indenture (Clarivate Analytics PLC)
Collateral Agent. (a) The Administrative Agent and each of the Lenders Trustee hereby designates and appoints the Collateral Agent as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action act on its behalf under this Indenture and each Collateral Document, and the provisions of Collateral Agent agrees to act as such; provided that, it is understood and agreed that all communications between the Collateral Agent and the Holders and all instructions or directions by Holders to the Collateral Agent shall be made or given through the Trustee.
(b) The Trustee hereby appoints ▇▇▇▇▇ Fargo Bank, National Association to act on its behalf as the Collateral Agent under this AgreementIndenture, the Security Agreement and under each of the other Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, Indenture and the Collateral Documents Documents, and the Intercreditor Agreements▇▇▇▇▇ Fargo Bank, together with such powers National Association agrees to act as are reasonably incidental theretosuch. The provisions of this Section 12.11 11.03 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower nor any of the Guarantors Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein other than as expressly provided in Section 12.03and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture and the Collateral Documents, the duties of the Collateral Documents Agent shall be ministerial and the Intercreditor Agreementsadministrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the Collateral Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, Indenture and the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters Subject to the provisions of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent Documents, each Holder, by acceptance of the Administrative Agent. The Administrative Agent and the Lenders acknowledge thatNotes, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge agrees that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of execute and deliver the Collateral Agent Documents to advance fundswhich it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof.
(d) The Collateral Agent is authorized and directed shall not be deemed to (i) enter into have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral DocumentsAgent shall have received written notice from the Trustee or unless a written notice of any event which is in fact such a Default is received by the Collateral Agent at the address specified in Section 13.01, (ii) enter into and such notice references the Notes and this Indenture. Subject to the Intercreditor AgreementsAgreement, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and Agent shall take such action with respect to such Default or Event of Default as may be requested by the Intercreditor Agreements and Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreementssubject to this Section 11.03).
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this AgreementCollateral, except for any such proceeds or payments received by the Administrative Agent Trustee from the Collateral Agent pursuant to the terms of this AgreementIndenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent Trustee pursuant to Article VIII6, the Administrative Agent Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral AgentAgent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent Trustee or any of the Lenders Holders to assure that the Collateral exists or is owned by the Borrower Company or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or of the Borrower Company’s or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, Indenture or any other Collateral Document or the Intercreditor AgreementsDocuments, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent Trustee or any Lender Holder as to any of the foregoing.
(hg) No provision The Collateral Agent may resign at any time by notice to the Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral Agent resigns under this AgreementIndenture, the Intercreditor Agreements or any Collateral Document Company shall require appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability as stated in the performance notice of any of its duties hereunder or thereunder or resignation), the Collateral Agent may appoint, after consulting with the Trustee, subject to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case consent of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
Company (i) The Collateral Agent (i) which shall not be liable for any action it takes or omits unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to take by the Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error the notice of judgment made in good faith by a Responsible Officer, unless it is proved that resignation) the Collateral Agent was grossly negligent in ascertaining shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the pertinent factsacceptance of its appointment as successor collateral agent hereunder, (ii) such successor collateral agent shall not be liable for interest on any money received by it except succeed to all the rights, powers and duties of the retiring Collateral Agent, and the term “Collateral Agent” shall mean such successor collateral agent, and the retiring Collateral Agent’s appointment, powers and duties as the Collateral Agent may agree shall be terminated. Promptly following the acceptance of the appointment of any successor Collateral Agent, the Company shall cause assignments of filings existing on the date of such assignment related to the Collateral to be filed or recorded sufficient to reflect the successor Collateral Agent, as mortgagee or secured party of record in writing accordance with applicable law related to each portion of the Borrower Collateral. After the retiring Collateral Agent’s resignation hereunder, the provisions of this Section 11.03 (and money held in trust Article 6) shall continue to inure to its benefit and the retiring Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counselunder this Indenture. The grant of permissive rights or powers to the Collateral Agent shall not be construed liable or responsible for the failure of the Company or any Guarantors to impose duties maintain insurance on the Collateral, nor shall it be responsible for any loss due to act.
(j) Neither the insufficiency of such insurance or by reason of the failure of any insurer to pay the full amount of any loss against which it may have insured to the Company, the Guarantors, the Trustee, the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or any other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionPerson.
Appears in 2 contracts
Sources: Indenture (CF Industries Holdings, Inc.), Indenture (CF Industries Holdings, Inc.)
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements, together and consents and agrees to the terms of the Intercreditor Agreements and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as such powers as are reasonably incidental theretoon the express conditions contained in this Section 12.9. The provisions of this Section 12.11 12.9 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower Holders nor any of the Guarantors Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0312.4. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provision of this Indenture, the Intercreditor Agreements and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the .
(b) The Collateral Agent shall have and may use perform any of its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert duties under this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the Intercreditor Agreementsrespective officers, including the exercise directors, employees, agents, advisors and attorneys-in-fact of remedies pursuant such Person and its Affiliates, (a “Related Person”) and shall be entitled to Article VIIIadvice of counsel concerning all matters pertaining to such duties, and any action so taken or not taken shall be deemed consented entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the Administrative Agent and the Lendersnegligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(bc) None of the Collateral Agent or any of its Affiliates respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Issuer, the Co-Issuer or any Guarantor, or any officer other Grantor or Affiliate of any of the foregoingGrantor, or any Officer or Related Person thereof, contained in this Indenture, or any Agreementother Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor Grantor or any other party to this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor Grantor or any GuarantorGrantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized shall be entitled to rely, and directed shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (i) enter including, without limitation, counsel to the Issuers or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral DocumentsAgent shall be fully justified in failing or refusing to take any action under this Indenture, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and (iv) perform all liability and observe its obligations expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents and or the Intercreditor AgreementsAgreements in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e) The Administrative Collateral Agent agrees that it shall not (and shall not be obliged to)deemed to have knowledge or notice of the occurrence of any Default or Event of Default, and shall not instruct unless a Trust Officer of the Collateral Agent toshall have received written notice from the Trustee or the Issuers referring to this Indenture, unless specifically requested to do so by the Required Lenders, take describing such Default or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement Event of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any Default and stating that such notice is a “notice of the Collateral. If at any time or times the Administrative default.” The Collateral Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments take such action with respect to the Obligations arising under, such Default or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms Event of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements Default as may be required requested by the Trustee in accordance with Article VI or the Holders of a majority in aggregate principal amount of the Notes (subject to negotiate the same to the Collateral Agentthis Section 12.9).
(f) The Administrative Collateral Agent is each Lender’s may resign at any time by notice to the Trustee and the Issuers, such resignation to be effective upon the acceptance of a successor agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possessionto its appointment as Collateral Agent. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify If the Collateral Agent thereofresigns under this Indenture, and, promptly upon the Collateral Agent’s request therefor Issuers shall deliver such Collateral appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent or otherwise deal with such Collateral (as stated in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any notice of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretoresignation), the Collateral Agent may act in any manner it may deem appropriateappoint, in its sole discretion given after consulting with the Collateral Agent’s own interest Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Issuers pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the Collateral and that notice of resignation) the Collateral Agent shall have no other duty or liability whatsoever be entitled to the Administrative Agent or any Lender as to any petition a court of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.competent jurisdiction to
Appears in 2 contracts
Sources: Indenture (Burger King Worldwide, Inc.), Indenture (New Red Canada Partnership)
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture, the Collateral Security Agreement and the Security Documents and the Intercreditor Agreements and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Documents Security Agreement and the Intercreditor Agreements Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Documents Security Agreement and the Intercreditor AgreementsSecurity Documents, together with such powers as are reasonably incidental thereto. The Collateral Agent agrees to act as such on the express conditions contained in this Section 1410. The provisions of this Section 12.11 1410 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, Holders nor the Borrower nor Issuers or any of the Subsidiary Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.031403. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Documents Security Agreement and the Intercreditor AgreementsSecurity Documents, the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or the Issuers or any Subsidiary Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Documents Security Agreement and the Intercreditor Agreements Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this AgreementIndenture, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this AgreementIndenture, the Collateral Documents Security Agreement and the Intercreditor AgreementsSecurity Documents, including the exercise of remedies pursuant to Article VIIIFive, and any action so taken or not taken shall be deemed consented to by the Administrative Agent Trustee and the LendersHolders.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 2 contracts
Sources: Indenture (Clearwire Corp /DE), Indenture (Clearwire Corp /DE)
Collateral Agent. (a) The Administrative Agent and each of the Lenders hereby designates and appoints the Collateral Agent as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken taken, suffered, or omitted to be taken by any of them under it in good faith and believed by it to be authorized or in connection with within the discretion or rights or powers conferred upon it by this Agreement or any other Loan Document. The rights, privileges, protections, immunities and benefits given to the transactions contemplated hereby (except for Collateral Agent, including its own gross negligence or willful misconduct) or under or right to be indemnified, are extended to, and shall be enforceable by, the Collateral Agent in connection with each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder. The Collateral Agent may request that any Collateral Document Loan Party or the Intercreditor Agreements Administrative Agent deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative other Loan Documents, which certificate may be signed by any person authorized to sign such a certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded. The permissive right of the Collateral Agent to take or any Lender for any recital, statement, representation, warranty, covenant refrain from taking action hereunder or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of under any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received Loan Documents shall not be construed as a duty. Money held by the Collateral Agent under this Agreement or under any of the other Loan Documents need not be segregated from other funds except to the extent required by law. The Collateral Agent shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Borrower. The Collateral Agent may refrain from taking any action in any jurisdiction if, in its opinion, the taking of such action in that jurisdiction would be contrary to any law of that jurisdiction or of the State of New York, it would otherwise render it liable to any Person in that jurisdiction or the State of New York, the taking of such action would require it to obtain any license or otherwise qualify to do business or subject it to taxation in such jurisdiction, it would not have the power or authority to take such action in such jurisdiction by virtue of any law in that jurisdiction or in connection with, this Agreement, the Collateral Documents or the Intercreditor AgreementsState of New York, or it is determined by any court or other competent authority in that jurisdiction or in the validity, effectiveness, genuineness, enforceability State of New York that it does not have such power or sufficiency of authority. Anything in this Agreement, the Collateral Documents Agreement or the Intercreditor Agreements, or for in any failure of the BorrowerLoan Documents notwithstanding, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of in no event shall the Collateral Agent be liable for special, indirect, consequential or punitive loss or damage of any kind whatsoever (including but not limited to loss of its Affiliates shall be under any obligation to profit), even if the Administrative Collateral Agent or any Lender to ascertain or to inquire has been advised as to the observance likelihood of such loss or performance of any damage and regardless of the agreements contained in, or conditions of, this Agreement, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records form of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agentaction. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except liable for any such proceeds error of judgment made in good faith by an officer or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms officers of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, unless it shall be conclusively determined in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose a final non-appealable judgment by a court of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify competent jurisdiction that the Collateral Agent thereof, and, promptly upon was grossly negligent or acting with willful misconduct in ascertaining the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) pertinent facts. The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at hereunder.
(b) Beyond the request or direction exercise of Lenders (or the Administrative Agent reasonable care in the case custody thereof and as otherwise specifically set forth herein, the Collateral Agent shall not have any duty as to any of the Collateral Agent) if it shall have reasonable grounds for believing that repayment in its possession or control or in the possession or control of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes agent or omits to take in good faith which it reasonably believes to be authorized bailee or within its rights any income thereon or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters preservation of law shall be full rights against prior parties or any other rights pertaining thereto and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to actresponsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Collateral Agent shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent in good faith.
(jc) Neither The Collateral Agent shall not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes gross negligence or willful misconduct, as determined by the final nonappealable decision of a court of competent jurisdiction, on the part of the Collateral Agent, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of any Loan Party to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral.
(d) Any Person into which the Collateral Agent nor may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Collateral Agent shall be a party, or any Person succeeding to all or substantially all of the corporate agency or corporate trust business of the Collateral Agent shall be the successor of the Collateral Agent hereunder and under the other Loan Documents, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
(e) The Collateral Agent shall be entitled to rely upon any certificate, notice or other document (including any facsimile or electronic mail) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper Person or Persons (without any duty (express or implied) of the Collateral Agent to verify the genuineness or correctness of any fact stated therein or propriety of the signatory or deliverer or otherwise the validity or enforceability thereof), and upon advice and statements of legal counsel, independent accountants and other experts selected by it. The Collateral Agent shall in all cases (including when any action by the Collateral Agent alone is authorized hereunder, if the Collateral Agent elects in its sole discretion to obtain instructions from the Administrative Agent, the Secured Parties or the Required Lenders) be fully protected in acting or in refraining from acting hereunder or under any Security Document pursuant to the written instructions of the Administrative Agent, the Secured Parties or the Required Lenders and any action taken or failure to act pursuant thereto shall be binding on the Administrative Agent shall be liable for delays or failures and the Secured Parties. Whenever in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts the administration of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither this Agreement the Collateral Agent nor shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Collateral Agent (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon instructions from the Administrative Agent, the Secured Parties or the Required Lenders.
(f) The Collateral Agent may refuse to perform any duty or exercise any power or right unless it receives indemnity reasonably satisfactory to it against any loss, liability or expense.
(g) Notwithstanding anything else to the contrary herein, whenever reference is made in this Agreement or any other Loan 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 Collateral 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 Collateral Agent, it is understood that in all cases the Collateral Agent shall be liable for fully justified in failing or refusing to take any indirect, special such action under this Agreement or consequential damages (included but not limited to lost profits) whatsoever, even such other Loan Document if it has been informed shall not have received written directions of the likelihood thereof Administrative Agent, Required Lenders or the Secured Parties in respect of such matter. Further, the Collateral Agent shall be permitted to request that all instructions and regardless directions of the form Administrative Agent, Required Lenders or the Secured Parties provided to the Collateral Agent hereunder or under the other Security Documents be in writing (and, in such a case, the Collateral Agent shall be excused from following any such instructions or directions that are not in writing). This provision is intended solely for the benefit of actionthe Collateral Agent and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim, or confer any rights or benefits on any party hereto.
(h) The agreements in this Section 8.08 shall survive the payment in full of the Secured Obligations and the termination of this Agreement and the Security Documents and the resignation or removal of the Collateral Agent and the exercise of Write-Down and Conversion Powers by a Resolution Authority.
Appears in 2 contracts
Sources: Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.)
Collateral Agent. (a) The Administrative Agent Issuer, the Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture, the Collateral Documents Note Security Documents, the Intercreditor Agreement and the Third Lien Intercreditor Agreements Agreement (if applicable) and the Administrative Agent Issuer, the Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its their behalf under the provisions of this AgreementIndenture, the Collateral Documents Note Security Documents, the Intercreditor Agreement and the Third Lien Intercreditor Agreements Agreement (if applicable) and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture, the Note Security Documents, the Intercreditor Agreement and the Third Lien Intercreditor Agreement (if applicable), and consents and agrees to the terms of the Intercreditor Agreement, the Collateral Documents Third Lien Intercreditor Agreement (if applicable) and each Note Security Document, as the Intercreditor Agreementssame may be in effect or may be amended, together restated, supplemented or otherwise modified from time to time in accordance with such powers as are reasonably incidental theretotheir respective terms. The Collateral Agent hereby accepts such designation and appointment and agrees to act as such on the express conditions contained in this Section 11.10. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Section 12.11 are solely for Indenture, the benefit of Intercreditor Agreement and the Notes Third Lien Intercreditor Agreement (if applicable) and the Note Security Documents, and the exercise by the Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained or remedies set forth herein other than as expressly provided in Section 12.03and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Documents Note Security Documents, the Intercreditor Agreement and the Third Lien Intercreditor AgreementsAgreement (if applicable), the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the Note Security Documents, the Intercreditor Agreement and the Third Lien Intercreditor Agreement (if applicable) to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Documents Note Security Documents, the Intercreditor Agreement and the Third Lien Intercreditor Agreements Agreement (if applicable) or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture or the other Note Documents with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) The Collateral Agent may perform any of its duties under this Indenture, the Note Security Documents, the Intercreditor Agreement or the Third Lien Intercreditor Agreement (if applicable) by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon, any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the negligence or misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and with due care, but such receiver, agent, employee, attorney-in-fact or Related Person shall be liable to the Issuer for any losses caused by their gross negligence or willful misconduct (as determined by a final non-appealable order of a court of competent jurisdiction).
(c) None of the Collateral Agent or any of its Affiliates respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconductmisconduct (as determined by a final non-appealable order of a court of competent jurisdiction)) or under or in connection with any Collateral Document Note Security Document, the Intercreditor Agreement or the Third Lien Intercreditor Agreements Agreement (if applicable) or the transactions contemplated thereby (except for its own gross negligence or willful misconductmisconduct (as determined by a final non-appealable order of a court of competent jurisdiction)), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Issuer or any Guarantor, or any officer other Grantor or Affiliate of any of the foregoingGrantor, or any Officer or Related Person thereof, contained in this Indenture, the Note Security Documents, the Intercreditor Agreement or any Agreementthe Third Lien Intercreditor Agreement (if applicable), or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this AgreementIndenture, the Collateral Documents Note Security Documents, the Intercreditor Agreement or the Third Lien Intercreditor AgreementsAgreement (if applicable), or the validity, effectiveness, genuineness, enforceability or sufficiency of this AgreementIndenture, the Collateral Documents Note Security Documents, the Intercreditor Agreement or the Third Lien Intercreditor AgreementsAgreement (if applicable), or for any failure of the Borrower, any Guarantor Grantor or any other party to this AgreementIndenture, the Collateral Documents Note Security Documents, the Intercreditor Agreement or the Third Lien Intercreditor Agreements Agreement (if applicable) to perform its obligations hereunder or thereunder. None of the Trustee, the Collateral Agent or any of its Affiliates respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this AgreementIndenture, the Collateral Documents Note Security Documents, the Intercreditor Agreement or the Third Lien Intercreditor Agreements Agreement (if applicable) or to inspect the properties, books, or records of the Borrower, any Guarantor Grantor or any GuarantorGrantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized shall be entitled to rely, and directed shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it in good faith to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (i) enter including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the Collateral Documentsfacts or matters stated in any resolution, (ii) enter into certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. Notwithstanding anything to the Intercreditor Agreementscontrary contained herein, (iii) bind the Lenders on the terms as set forth in the Collateral Agent shall act solely pursuant to the instructions of the Holders and the Trustee with respect to the Notes Security Documents and the Collateral. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Note Security Documents, the Intercreditor Agreements Agreement or the Third Lien Intercreditor Agreement (if applicable) unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and (iv) perform all liability and observe its obligations under expense which may be incurred by it by reason of taking or continuing to take any such action. Except as otherwise provided in the Note Security Documents, the Collateral Documents and Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Note Security Documents, the Intercreditor AgreementsAgreement or the Third Lien Intercreditor Agreement (if applicable) in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e) The Administrative Collateral Agent agrees that it shall not (and shall not be obliged to)deemed to have knowledge or notice of the occurrence of any Default or Event of Default, and shall not instruct unless a Trust Officer of the Collateral Agent toshall have received written notice of such Default or Event of Default from the Trustee or the Issuer referring to this Indenture, unless specifically requested to do so by the Required Lenders, take describing such Default or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement Event of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the CollateralDefault. If at any time or times the Administrative The Collateral Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments take such action with respect to the Obligations arising under, such Default or relating to, this Agreement, except for any such proceeds or payments received Event of Default as may be requested by the Administrative Agent from Trustee in accordance with Section 6.1 or the Collateral Agent pursuant Holders of a majority in aggregate principal amount of the Notes (subject to this Section 11.10), subject to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral AgentNote Security Documents.
(f) The Administrative Collateral Agent is each Lender’s may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possessionto its appointment as Collateral Agent. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify If the Collateral Agent thereofresigns under this Indenture, and, promptly upon the Collateral Agent’s request therefor Issuer shall deliver such Collateral appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent or otherwise deal with (as stated in the notice of resignation, which date shall not be earlier than 20 Business Days following the date on which such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever notice is delivered to the Administrative Agent or any Issuer), the Trustee, at the direction of the Lenders to assure that Holders of a majority of the Collateral exists or is owned by aggregate principal amount of the Borrower or any Guarantor or is cared forNotes then outstanding, protectedmay appoint a successor collateral agent, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest consent of the Collateral Documents has been properly Issuer (which consent shall not be unreasonably withheld and completely listed which shall not be required during a continuing payment or delivered, as bankruptcy Event of Default). If no successor collateral agent is appointed and consented to by the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available Issuer pursuant to the Collateral Agent pursuant to this Agreement, any Collateral Document or preceding sentence within 30 days after the Intercreditor Agreements, it being understood and agreed that in respect intended effective date of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest resignation (as stated in the Collateral and that notice of resignation) the Collateral Agent shall have no other duty or liability whatsoever be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the Administrative Agent or any Lender acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to any all the rights, powers and duties of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the retiring Collateral Agent) if it , and the term “Collateral Agent” shall have reasonable grounds for believing that repayment of mean such funds is not assured to it.
(i) The successor collateral agent, and the retiring Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powersAgent’s appointment, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except powers and duties as the Collateral Agent may agree in writing with shall be terminated. After the Borrower (retiring Collateral Agent’s resignation hereunder, the provisions of Section 7.7 and money held in trust by the Collateral Agent need not be segregated from other funds except this Section 11.10 shall continue to the extent required by law), (iii) the Collateral Agent may consult with counsel of inure to its selection benefit and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the retiring Collateral Agent shall not by reason of such resignation be construed deemed to impose duties be released from liability as to act.
(j) Neither any actions taken or omitted to be taken by it while it was the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionunder this Indenture.
Appears in 2 contracts
Sources: Indenture (Ultra Petroleum Corp), Exchange Agreement (Ultra Petroleum Corp)
Collateral Agent. (a) The Administrative By their acceptance of the Notes, the Holders hereby designate and appoint the Trustee to serve as Collateral Agent and as their agent under this Indenture, the Security Documents, the Alabama Intercreditor Agreement and the Junior Lien Intercreditor Agreement and the Trustee and each of the Lenders hereby designates and appoints the Collateral Agent as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each Holders by acceptance of the Lenders Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Documents Security Documents, the Alabama Intercreditor Agreement and the Junior Lien Intercreditor Agreements Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture, the Security Documents, the Alabama Intercreditor Agreement and the Junior Lien Intercreditor Agreement, and consents and agrees to the terms of the Alabama Intercreditor Agreement, the Junior Lien Intercreditor Agreement and each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Trustee acknowledges that the Collateral Documents and Agent agrees to act as such on the Intercreditor Agreements, together with such powers as are reasonably incidental theretoexpress conditions contained in this Section 11.09. The provisions of this Section 12.11 11.09 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower Holders nor any of the Guarantors Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0311.03. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Alabama Intercreditor Agreement, the Junior Lien Intercreditor Agreement and the Security Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein or therein, shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Security Documents, the Alabama Intercreditor Agreement and the Junior Lien Intercreditor Agreement, the duties of the Collateral Documents Agent shall be ministerial and the Intercreditor Agreementsadministrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Documents and Security Documents, the Alabama Intercreditor Agreements Agreement or the Junior Lien Intercreditor Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) The Collateral Agent may perform any of its duties under this Indenture, the Security Documents, the Alabama Intercreditor Agreement or the Junior Lien Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or through its Related Persons and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Collateral Agent or any of its Affiliates Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document Security Document, the Alabama Intercreditor Agreement or the Junior Lien Intercreditor Agreements Agreement or the transactions contemplated thereby (except for to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Issuer or any Guarantor, or any officer Grantor or Affiliate of any of the foregoingGrantor, or any Officer or Related Persons thereof, contained in this Indenture, or any Agreementother Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this AgreementIndenture, the Collateral Documents Security Documents, the Alabama Intercreditor Agreement or the Junior Lien Intercreditor AgreementsAgreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this AgreementIndenture, the Collateral Documents Security Documents, the Alabama Intercreditor Agreement or the Junior Lien Intercreditor AgreementsAgreement, or for any failure of the Borrower, any Guarantor Grantor or any other party to this AgreementIndenture, the Collateral Documents Security Documents, the Alabama Intercreditor Agreement or the Junior Lien Intercreditor Agreements Agreement to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this AgreementIndenture, the Collateral Documents Security Documents, the Alabama Intercreditor Agreement or the Junior Lien Intercreditor Agreements Agreement or to inspect the properties, books, or records of the Borrower, any Guarantor Grantor or any GuarantorGrantor’s Affiliates.
(cd) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take action under the Notes Documents unless it shall first receive such advice or concurrence from the party or parties entitled to give instructions to the Collateral Agent under the terms of the Collateral Agreement.
(e) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Collateral Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 11.09 and the terms of the Collateral Agreement and the Alabama Intercreditor Agreement).
(f) U.S. Bank National Association and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor Grantor and their its Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative AgentTrustee. The Administrative Agent Trustee and the Lenders Holders acknowledge that, pursuant to such activities, the Collateral Agent U.S. Bank National Association or its Affiliates may receive information regarding the Borrower, any Guarantor Grantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor Grantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent Trustee or the LendersHolders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent U.S. Bank National Association to advance funds.
(dg) The Collateral Agent may resign at any time subject to the terms of the Collateral Agreement and the procedures set forth therein.
(h) 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, attorneys, representatives or agents shall be responsible for any act or failure to act hereunder, except to the extent such act is found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct.
(i) By their acceptance of the Notes hereunder, the Collateral Agent is authorized and directed by the Holders to (i) enter into the Collateral DocumentsSecurity Documents to which it is party, whether executed on or after the Issue Date, (ii) enter into the Alabama Intercreditor AgreementsAgreement, (iii) enter into the Junior Lien Intercreditor Agreement, (iv) bind the Lenders Holders on the terms as set forth in the Collateral Documents Security Documents, the Alabama Intercreditor Agreement and the Junior Lien Intercreditor Agreements Agreement and (ivv) perform and observe its obligations under the Collateral Documents Security Documents, the Alabama Intercreditor Agreement and the Junior Lien Intercreditor AgreementsAgreement.
(ej) The Administrative Agent Trustee agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required LendersHolders of a majority in aggregate principal amount of the Notes, take or cause to be taken any action to enforce its rights under this Agreement Indenture or the other Notes Documents or against the Borrower or any GuarantorGrantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this AgreementIndenture, except for any such proceeds or payments received by the Administrative Agent Trustee from the Collateral Agent pursuant to the terms of this AgreementIndenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent Trustee pursuant to Article VIII6, the Administrative Agent Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent, such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents, the Alabama Intercreditor Agreement and the Junior Lien Intercreditor Agreement.
(fk) The Administrative Collateral Agent is each LenderHolder’s agent for the purpose of perfecting the LendersHolders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent Trustee obtain possession of any such Collateral, upon request from the BorrowerIssuer, the Administrative Agent Trustee shall notify the Collateral Agent thereof, and, thereof and promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(gl) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent Trustee, any of the Holders, or any of the Lenders Noteholder Secured Parties to assure that the Collateral exists or is owned by the Borrower or any Guarantor Grantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or of the Borrower or any GuarantorGrantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this AgreementIndenture, any Collateral Document Security Document, the Alabama Intercreditor Agreement or the Junior Lien Intercreditor AgreementsAgreement other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the Notes or if there are Other First Lien Obligations then outstanding, the Applicable Authorized Representative or, if there are Designated Priority Obligations then outstanding, the Designated Priority Representative or as otherwise provided in the Security Documents, the Alabama Intercreditor Agreement or the Junior Lien Intercreditor Agreement, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent Trustee, any Holder, or any Lender Noteholder Secured Party as to any of the foregoing.
(hm) No provision If the Issuer incurs any obligations in respect of this AgreementJunior Lien Indebtedness, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent shall (or the Administrative Agentand is hereby authorized and directed to) to expend or risk its own funds or otherwise incur any financial liability enter into an intercreditor agreement in the performance form attached as Exhibit E with a designated agent or representative for the holders of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action the Obligations so incurred (at the request or direction sole expense and cost of Lenders (or the Administrative Agent in the case Issuer, including legal fees and expenses of the Collateral Agent), bind the Holders on the terms set forth therein and perform and observe its obligations thereunder. To the extent that the Junior Lien Intercreditor Agreement is then in effect with respect to existing Junior Lien Indebtedness, the Collateral Agent shall (and is hereby authorized and directed to) if it shall have reasonable grounds enter into a joinder agreement to such Junior Lien Intercreditor Agreement with a designated agent or representative for believing that repayment the holders of such funds is not assured to itthe Obligations so incurred (at the sole expense and cost of the Issuer, including legal fees and expenses of the Collateral Agent).
(in) The Collateral Agent [intentionally omitted].
(io) shall not be liable for any action it takes Notwithstanding anything to the contrary contained in this Indenture, the Alabama Intercreditor Agreement, the Junior Lien Intercreditor Agreement or omits to take the Security Documents, in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the event the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust is instructed by the Collateral Agent need not be segregated from other funds except Trustee on behalf of the Holders to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the extent required by law)Collateral, (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed required to impose duties commence any such action or exercise any remedy or to act.
(j) Neither inspect or conduct any studies of any property under any mortgages or take any such other action if the Collateral Agent nor has determined that it may incur personal liability as a result of the Administrative Agent shall be liable for delays presence at, or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts release on or from, the Collateral or such property, of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither any hazardous substances unless the Collateral Agent nor has received security or indemnity from the Administrative Holders (and the holders of other First Lien Obligations (if any) whose representative has similarly instructed the Collateral Agent) in an amount and in a form all satisfactory to the Collateral Agent in its sole discretion, protecting the Collateral Agent from all such liability. The Collateral Agent shall at any time be liable for any indirect, special or consequential damages (included but not limited entitled to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.cease takin
Appears in 2 contracts
Sources: Indenture (Reliant Software, Inc.), Indenture (Community Choice Financial Inc.)
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreement and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Security Documents and the Intercreditor AgreementsAgreement, together and consents and agrees to the terms of this Indenture, the Intercreditor Agreement and each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as such powers as are reasonably incidental theretoon the express conditions contained in this Section 11.09. The provisions of this Section 12.11 11.09 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower Holders nor any of the Guarantors Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0311.03 hereof. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provision of this Indenture, the Intercreditor Agreement and the Security Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Security Documents and the Intercreditor AgreementsAgreement, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the other documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) The Collateral Agent may perform any of its duties under this Indenture, the Security Documents or the Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or through its Related Persons and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and with due care.
(c) None of the Collateral Agent or any of its Affiliates respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconductmisconduct as determined by a court of competent jurisdiction in a final and non-appealable decision) or under or in connection with any Collateral Security Document or the Intercreditor Agreements Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconductmisconduct as determined by a court of competent jurisdiction in a final and non-appealable decision), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Company or any Guarantor, or any officer Grantor or Affiliate of any of the foregoingGrantor, or any Officer or Related Person thereof, contained in this Indenture, the Security Documents or any the Intercreditor Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this AgreementIndenture, the Collateral Security Documents or the Intercreditor AgreementsAgreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this AgreementIndenture, the Collateral Security Documents or the Intercreditor AgreementsAgreement, or for any failure of the Borrower, any Guarantor Grantor or any other party to this AgreementIndenture, the Collateral Security Documents or the Intercreditor Agreements Agreement to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this AgreementIndenture, the Collateral Security Documents or the Intercreditor Agreements Agreement or to inspect the properties, books, or records of the Borrower, any Guarantor Grantor or any GuarantorGrantor’s Affiliates.
(cd) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Company or any Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreement unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee or the Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with this Indenture (including Article 6) or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 11.09).
(f) Wilmington Trust, National Association and its respective Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor Grantor and their its Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative AgentTrustee. The Administrative Agent Trustee and the Lenders Holders acknowledge that, pursuant to such activities, the Collateral Agent Wilmington Trust, National Association or its respective Affiliates may receive information regarding the Borrower, any Guarantor Grantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor Grantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent Trustee or the LendersHolders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent Wilmington Trust, National Association to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever may resign at any time by notice to the Administrative Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral Agent or any resigns under this Indenture, the Company shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest resignation of the Collateral Documents has been properly and completely listed or delivered, Agent (as stated in the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty notice of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretoresignation), the Collateral Agent may act in any manner it may deem appropriateappoint, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing after consulting with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.Trustee,
Appears in 2 contracts
Sources: Indenture (Delta Tucker Holdings, Inc.), Indenture (Worldwide Recruiting & Staffing Services LLC)
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints authorize the appointment of the Collateral Agent as its the Trustee’s and the Holders’ collateral agent under this Agreement, the Collateral Documents Agreements, and the Intercreditor Agreements and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes authorize the Collateral Agent to take such action on its their behalf under the provisions of this Agreement, the Collateral Documents and Agreements, including the Intercreditor Agreements Agreements, and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Documents Intercreditor Agreements and the Intercreditor other Collateral Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the The Collateral Agent or any may resign and its successor appointed in accordance with the terms of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent Trustee is authorized and directed by the Holders and the Holders by acquiring the Notes are deemed to have authorized the Trustee, as applicable, to (i) enter into the Collateral Documents, (ii1) enter into the Intercreditor Agreements, (iii2) bind the Lenders Holders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and Agreements, (iv3) perform and observe its obligations and exercise its rights and powers under the Intercreditor Agreements, including entering into amendments permitted by the terms of this Indenture, the Intercreditor Agreements or the other Collateral Agreements and (4) cause the Collateral Agent to enter into and perform its obligations under the Collateral Documents Agreements. The Collateral Agent is authorized and directed by the Trustee and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (Holders and shall not be obliged to), and shall not instruct the Holders by acquiring the Notes are deemed to have authorized the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedingsAgent, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by paymententer into the other Collateral Agreements to which it is a party, foreclosure(ii) bind the Trustee and the Holders on the terms as set forth in such Collateral Agreements and (iii) perform and observe its obligations and exercise its rights and powers under such Collateral Agreements, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received including entering into amendments permitted by the Administrative Agent from terms of this Indenture or the Collateral Agent pursuant Agreements. Each Holder, by its acceptance of a Note, is deemed to have consented and agreed to the terms of this the Intercreditor Agreements and each other Collateral Agreement, as originally in effect and as amended, restated, replaced, supplemented or (ii) payments modified from time to time in accordance with its terms or the Collateral Agent in excess terms of this Indenture. Each of the amount required Trustee and the Holders by acquiring the Notes is hereby deemed to (A) agree that it will be paid bound by and will take no actions contrary to the Administrative Agent pursuant to Article VIIIprovisions of the Intercreditor Agreements and (B) acknowledge that it has received a copy of the Intercreditor Agreements and that the exercise of certain of the Trustee’s rights and remedies hereunder may be subject to, and restricted by, the Administrative Agent shall promptly turn provisions of the same over to the Collateral AgentIntercreditor Agreements. NOTWITHSTANDING ANY OTHER PROVISION CONTAINED IN THIS INDENTURE, in kindIN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THIS INDENTURE AND EITHER OF THE INTERCREDITOR AGREEMENTS, and with such endorsements as may be required to negotiate the same to the Collateral AgentTHE APPLICABLE INTERCREDITOR AGREEMENT SHALL CONTROL.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(gd) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent Trustee or any of the Lenders Holders to assure that the Collateral exists or is owned by the Borrower Company or any Guarantor of the Collateral Grantors or is cared for, protected, protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or of the Borrower or any Guarantorapplicable Collateral Grantor’s property constituting collateral Collateral intended to be subject to the Lien and security interest of the Collateral Documents Agreements has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(he) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither . For the avoidance of doubt, nothing herein shall require the Collateral Agent nor to file financing statements or continuation statements, or be responsible for maintaining the Administrative Agent security interests purported to be created by the Collateral Agreements and such responsibility shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed solely that of the likelihood thereof and regardless of the form of actionCompany.
Appears in 2 contracts
Sources: Indenture (Comstock Oil & Gas, LP), Indenture (Comstock Oil & Gas, LP)
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements, together and consents and agrees to the terms of the Intercreditor Agreements and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as such powers as are reasonably incidental theretoon the express conditions contained in this Section 12.9. The provisions of this Section 12.11 12.9 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower Holders nor any of the Guarantors Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0312.4. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provision of this Indenture, the Intercreditor Agreements and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the .
(b) The Collateral Agent shall have and may use perform any of its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert duties under this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the Intercreditor Agreementsrespective officers, including the exercise directors, employees, agents, advisors and attorneys-in-fact of remedies pursuant such Person and its Affiliates, (a “Related Person”) and shall be entitled to Article VIIIadvice of counsel concerning all matters pertaining to such duties, and any action so taken or not taken shall be deemed consented entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the Administrative Agent and the Lendersnegligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(bc) None of the Collateral Agent or any of its Affiliates respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Issuer, the Co-Issuer or any Guarantor, or any officer other Grantor or Affiliate of any of the foregoingGrantor, or any Officer or Related Person thereof, contained in this Indenture, or any Agreementother Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor Grantor or any other party to this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor Grantor or any GuarantorGrantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized shall be entitled to rely, and directed shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (i) enter including, without limitation, counsel to the Issuers or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, judgment, order, bond, debenture, or other paper or document. The Collateral DocumentsAgent shall be fully justified in failing or refusing to take any action under this Indenture, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and (iv) perform all liability and observe its obligations expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents and or the Intercreditor AgreementsAgreements in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e) The Administrative Collateral Agent agrees that it shall not (and shall not be obliged to), and shall not instruct deemed to have knowledge or notice of the Collateral Agent tooccurrence of any Default or Event of Default, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement a Trust Officer of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to received written notice from the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (Trustee or the Administrative Agent) Issuers referring to expend this Indenture, describing such Default or risk its own funds or otherwise incur any financial liability in the performance Event of any Default and stating that such notice is a “notice of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to itdefault.
(i) ” The Collateral Agent (i) shall not take such action with respect to such Default or Event of Default as may be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust requested by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and Trustee in accordance with Article VI or the advice or opinion Holders of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures a majority in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed aggregate principal amount of the likelihood thereof and regardless of the form of actionNotes (subject to this Section 12.9).
Appears in 2 contracts
Sources: Indenture (Restaurant Brands International Inc.), Indenture (Restaurant Brands International Limited Partnership)
Collateral Agent. (a) The Administrative Agent Each Lender party hereto, and each by receiving the benefits of the Lenders Specified Security Transactions each other Lender, hereby designates and irrevocably appoints the Collateral Agent to act on its behalf as its agent under this Agreement, the Collateral Agent under the Security Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action actions on its behalf under the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreementshereof or thereof, together with such actions and powers as are reasonably incidental thereto. Without limiting the foregoing, notwithstanding anything in the Term Loan Agreement to the contrary, each Lender party hereto, and by receiving the benefits of the Specified Security Transactions each other Lender, hereby irrevocably authorizes and directs the Collateral Agent to enter into, or amend, (a) any Security Documents as the Collateral Agent may deem reasonably necessary or appropriate or as the Collateral Agent may be authorized or instructed to take pursuant to the Revolving Credit Agreement (including, without limitation, in order to include additional indebtedness as a secured obligation thereunder) and (b) any intercreditor agreement (or similar agreements with the same or similar purpose) as agent for it and on its behalf as the Collateral Agent may deem reasonably necessary or appropriate or as the Collateral Agent may be authorized or instructed to take pursuant to the Revolving Credit Agreement (including, without limitation, with respect to any intercreditor arrangements with the trustee, agent, holders or lenders in respect of additional indebtedness that will be pari passu or junior to the Secured Obligations) and agrees that the Collateral Agent, may take such actions on its behalf as are contemplated by the terms of any Security Document. Any such Security Document entered into by the Collateral Agent on behalf of the Lenders shall be binding upon each Lender. The Collateral Agent shall notify the Lenders of the effectiveness of any Security Document when executed and shall provide a copy of the executed agreement to the Lenders; provided that a failure to do so shall not affect the effectiveness thereof. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors and no Grantor shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lendersprovisions.
(b) None The provisions of the Security Documents and the Revolving Credit Agreement relating to the Collateral Agent including, without limitation, the provisions relating to resignation or removal of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or and the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None powers and duties and immunities of the Collateral Agent or are incorporated herein by this reference and shall survive any of its Affiliates shall be under any obligation to the Administrative Agent or any Lender to ascertain or to inquire as to the observance or performance of any termination of the agreements contained in, Revolving Credit Agreement or conditions of, this Agreement, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Notes Purchase Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 2 contracts
Sources: Term Loan Agreement, Term Loan Agreement (Natural Resource Partners Lp)
Collateral Agent. (a) The Administrative Agent and each of the Lenders Each Investor hereby designates and irrevocably appoints the Collateral Agent as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action actions on its behalf under the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreementshereof, together with such actions and powers as are reasonably incidental thereto. The provisions Person serving as the Collateral Agent hereunder shall have the same rights and powers in its capacity as an Investor as any other investor and may exercise the same as though it were not the Collateral Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of this Section 12.11 are solely for business with the benefit Company or any Subsidiary or other Affiliate thereof as if it were not the Collateral Agent hereunder. The Collateral Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the Notes foregoing, (i) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and none of is continuing, (ii) the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights as a third party beneficiary of any of the provisions contained herein other than as and powers expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in contemplated by this Agreement, the Collateral Documents and the Intercreditor Agreements(iii) except as expressly set forth herein, the Collateral Agent shall not have any duties or responsibilities hereunder nor duty to disclose, and shall not be liable for the Collateral Agent have or be deemed failure to have any fiduciary relationship with the Administrative Agentdisclose, any Lender information relating to the Company or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference Subsidiaries that is communicated to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to obtained by the Administrative Agent and the Lenders.
(b) None of the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall (i) not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall be deemed not to have knowledge of any Event of Default unless and until written notice thereof is given to the Collateral Agent by the Company or an Investor (and, promptly after its receipt of any such notice, it shall give each Investor and the Company notice thereof), and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (a) any statement, warranty or representation made in or in connection with any Secured Transaction Document, (b) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (c) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein, (d) the validity, enforceability, effectiveness or genuineness thereof or any other agreement, instrument or other document or (e) the satisfaction of any condition set forth in herein, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent. The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Grantors), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Collateral Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub agents appointed by the Collateral Agent, provided that no such delegation shall serve as a release of the Collateral Agent or waiver by the Company of any rights hereunder. The Collateral Agent and any such sub agent may perform any and all its duties and exercise its rights and powers through their respective affiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such sub agent and to the affiliates of the Collateral Agent and any such sub agent, and shall apply to their respective activities acting for the Collateral Agent. Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any time by notifying the Investors and the Company. Upon any such resignation, the Investors shall have the right to appoint a successor. If no successor shall have been so appointed by the Investors and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Investors, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York, or an affiliate of any such bank. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. After the Collateral Agent’s resignation hereunder, the provisions of this Article shall continue in effect for the benefit of such retiring Collateral Agent, its sub agents and their respective affiliates in respect of any actions taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any while it was acting as Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct)Agent. Each Investor acknowledges that it has, or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of independently and without reliance upon the Collateral Agent or any of other Investor and based on such documents and information as it has deemed appropriate, made its Affiliates shall be under any obligation own credit analysis and decision to enter into the Administrative Agent or any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained inSecured Transaction Documents. Each Investor also acknowledges that it will, or conditions of, this Agreement, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder independently and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, reliance upon the Collateral Agent or its Affiliates may receive any other Investor and based on such documents and information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested from time to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, continue to make its own decisions in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty taking or liability whatsoever to the Administrative Agent not taking action under or based upon any Secured Transaction Document, any related agreement or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.document furnished thereunder
Appears in 2 contracts
Sources: Guaranty and Security Agreement (Vyyo Inc), Guaranty and Security Agreement (Vyyo Inc)
Collateral Agent. (a) The Administrative In addition to the rights, protections and indemnities set forth herein, the Collateral Agent shall have all the rights and each protections provided in the Security Documents.
(b) Each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements, together and consents and agrees to the terms of the Intercreditor Agreements and each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms.
(c) Each of the Holders by acceptance of the Notes hereby directs the Trustee to so designate and appoint the Collateral Agent as its agent under this Indenture and the Security Documents and the Trustee hereby so designates and appoints the Collateral Agent. The Collateral Agent agrees to act as such powers as are reasonably incidental theretoon the express conditions contained in this Section 12.03. The provisions of this Section 12.11 12.03 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the LendersHolders, the Borrower Company, the Co-Obligor nor any of the Guarantors shall have any rights as a third third-party beneficiary of any of the provisions contained herein other than as expressly provided hereunder. Each Holder agrees that any action taken by the Collateral Agent in Section 12.03accordance with the provision of this Indenture, the Intercreditor Agreements and the Security Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in nature and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the Security Documents and the Intercreditor Agreements to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder, the Company, the Co-Obligor or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead.
(d) The Collateral Agent may perform any of its duties under this Indenture, the Security Documents or the Intercreditor Agreements by or through receivers, agents, employees, attorneys-in-fact or through its related Persons and shall be entitled to advice of counsel concerning all matters pertaining to such term is used merely as a matter of market customduties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel, including counsel that is intended an employee of or counsel to create or reflect only an administrative relationship between independent contracting parties. Except as expressly otherwise provided in this Agreementthe Company, the Co-Obligor or any Guarantor. The Collateral Agent shall have and may use its sole discretion with respect to exercising not be responsible for the gross negligence or refraining from exercising willful misconduct of any discretionary rights receiver, agent, employee, attorney-in-fact or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lendersrelated Person that it selects as long as such selection was made in good faith.
(be) None of the Collateral Agent or any of its Affiliates respective related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture, the Notes or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document the Security Documents or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Company, the Co-Obligor or any Guarantor or Affiliate of the Company, the Co-Obligor or any Guarantor, or any officer or Affiliate of any of the foregoingrelated Person thereof, contained in this Indenture, or any AgreementSecurity Documents or Intercreditor Agreements, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this AgreementIndenture, the Collateral Notes, the Security Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this AgreementIndenture, the Collateral Security Documents or the Intercreditor Agreements, or for any failure of the BorrowerCompany, the Co-Obligor or any Guarantor or any other party to this AgreementIndenture, the Collateral Security Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates respective related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this AgreementIndenture, the Collateral Notes, the Security Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the BorrowerCompany, the Co-Obligor, any Guarantor or any Guarantorof the Company’s, the Co-Obligor’s or Guarantors’ Affiliates.
(cf) The Collateral Agent shall be entitled to rely, and shall be fully protected in conclusively relying, upon any writing, resolution, notice, consent, certificate, opinion, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel that is an employee of or counsel to the Company, the Co-Obligor or any Guarantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Notes, the Security Documents or the Intercreditor Agreements, unless it shall first be directed by the Trustee acting upon the direction of the Holders of a majority in aggregate principal amount of the Notes in accordance with the terms hereof and under the Notes and, if it so requests, it shall first be indemnified to its reasonable satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this or any other indenture, the Notes, the Security Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(g) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Collateral Agent shall have received written notice from the Trustee or the Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes in accordance with the terms hereof.
(h) U.S. Bank Trust Company, National Association and its respective Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the BorrowerCompany, the Co-Obligor, any Guarantor and their respective Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative AgentTrustee. The Administrative Agent Trustee and the Lenders Holders acknowledge that, pursuant to such activities, the Collateral Agent U.S. Bank Trust Company, National Association or its respective Affiliates may receive information regarding the BorrowerCompany, the Co-Obligor, any Guarantor or its their Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrowerthe Company, the Co-Obligor or any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent Trustee or the LendersHolders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent U.S. Bank Trust Company, National Association to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent may resign at any time by notice to the Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral Agent resigns under this Indenture, the Company (ior the Trustee, with the consent of the Company) shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent (as stated in the notice of resignation), the Collateral Agent may appoint, subject to the consent of the Company (which shall not be liable for any action it takes or omits unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to take in good faith which it reasonably believes by the Company pursuant to be authorized or within its rights or powersthe preceding sentence, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining shall be entitled to petition a court of competent jurisdiction to appoint a successor at the pertinent factsexpense of the Company. Upon the acceptance of its appointment as successor collateral agent hereunder, (ii) such successor collateral agent shall not be liable for interest on any money received by it except succeed to all the rights, powers and duties of the retiring Collateral Agent, and the term “Collateral Agent” shall mean such successor collateral agent, and the retiring Collateral Agent’s appointment, powers and duties as the Collateral Agent may agree in writing with shall be terminated. After the Borrower (retiring Collateral Agent’s resignation hereunder, the provisions of this Section 12.03 and money held in trust by the Collateral Agent need not be segregated from other funds except Section 7.07 hereof shall continue to the extent required by law), (iii) the Collateral Agent may consult with counsel of inure to its selection benefit and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the retiring Collateral Agent shall not by reason of such resignation be construed deemed to impose duties be released from liability as to act.
(j) Neither any actions taken or omitted to be taken by it while it was the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionunder this Indenture.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent and each Each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this AgreementIndenture, the Collateral Documents Intercreditor Agreement and the Intercreditor Agreements and the Administrative Agent other Security Documents, and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes and directs the Notes Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Documents Intercreditor Agreement and the Intercreditor Agreements other Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this AgreementIndenture, the Collateral Documents Intercreditor Agreement and the other Security Documents, and consents and agrees to the terms of the Intercreditor AgreementsAgreement and each other Security Document, together as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Notes Collateral Agent agrees to act as such powers as are reasonably incidental theretoon the express conditions contained in this Section 10.07. The provisions of this Section 12.11 10.07 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower nor Holders or any of the Company or the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the other Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein other than as expressly provided in Section 12.03and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Documents Intercreditor Agreement and the Intercreditor Agreementsother Security Documents, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the Intercreditor Agreement and the other Security Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or the Company or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Intercreditor Agreement or the other Security Documents and the Intercreditor Agreements or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Notes Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the The Notes Collateral Agent or may perform any of its duties and/or exercise any remedies under this Indenture, the Intercreditor Agreement or the other Security Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible or liable for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made with due care.
(c) Neither the Notes Collateral Agent nor any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements Security Documents or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Company or any Guarantor or Affiliate of the Company or any Guarantor, or any officer Officer or Affiliate of any of the foregoingRelated Person thereof, contained in this Indenture, the Intercreditor Agreement or any Agreementthe other Security Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this AgreementIndenture, the Collateral Documents Intercreditor Agreement or the Intercreditor Agreementsother Security Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this AgreementIndenture, the Collateral Documents Intercreditor Agreement or the Intercreditor Agreementsother Security Documents, or for any failure of the Borrower, Company or any Guarantor or any other party to this AgreementIndenture, the Collateral Documents Intercreditor Agreement or the Intercreditor Agreements other Security Documents to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its Affiliates respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this AgreementIndenture, the Collateral Documents Intercreditor Agreement or the Intercreditor Agreements other Security Documents or to inspect the properties, books, or records of the Borrower, Company or any Guarantor or any Guarantor’s of their respective Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Notes Collateral Agent is authorized shall be entitled to rely, and directed shall be fully protected in relying upon, any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or email) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (i) enter including, without limitation, counsel to the Company or any Guarantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the Collateral Documentsfacts or matters stated in any resolution, (ii) enter into the Intercreditor Agreementscertificate, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreementsstatement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document.
(e) The Administrative Notes Collateral Agent agrees that it shall not (and shall not be obliged to)deemed to have knowledge or notice of the occurrence of any Default or Event of Default, and shall not instruct unless a Responsible Officer of the Notes Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments have received by the Administrative Agent written notice from the Collateral Agent pursuant Trustee or the Company referring to the terms this Indenture, describing such Default or Event of this Agreement, or (ii) payments from the Collateral Agent in excess Default and stating that such notice is a “notice of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agentdefault.”
(f) The Administrative Notes Collateral Agent may resign at any time by notice to the Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture, the Company shall appoint a successor collateral agent. If no successor collateral agent is each Lender’s agent for appointed prior to the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 intended effective date of the Uniform Commercial Code can be perfected only by possession. Should resignation of the Administrative Notes Collateral Agent obtain possession (as stated in the notice of any such Collateral, upon request from the Borrowerresignation), the Administrative Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation), the Notes Collateral Agent shall notify be entitled to petition a court of competent jurisdiction, at the expense of the Company, to appoint a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Notes Collateral Agent thereofAgent, andand the term “Notes Collateral Agent” shall mean such successor collateral agent, promptly upon and the retiring Notes Collateral Agent’s request therefor shall deliver such Collateral to appointment, powers and duties as the Notes Collateral Agent or otherwise deal with such Collateral in accordance with shall be terminated. After the retiring Notes Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretoresignation hereunder, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision provisions of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent Section 10.07 (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (iand Section 7.07) shall not be liable for any action it takes or omits continue to take in good faith which it reasonably believes inure to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection benefit and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the retiring Notes Collateral Agent shall not by reason of such resignation be construed deemed to impose duties be released from liability as to act.
(j) Neither any actions taken or omitted to be taken by it while it was the Notes Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionunder this Indenture.
Appears in 1 contract
Sources: Indenture (Post Holdings, Inc.)
Collateral Agent. (a) The Administrative Citicorp International Limited will initially act as Collateral Agent and each under the Security Documents in respect of the Lenders hereby designates and appoints security over the Collateral. Citicorp International Limited, acting in its capacity as such, shall have such duties with respect to the Collateral Agent pledged, assigned or granted pursuant to the Security Documents as its agent under are set forth in this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreement (if any). Under certain circumstances, Citicorp International Limited as the Trustee and the Administrative Agent and each of the Lenders hereby irrevocably authorizes as the Collateral Agent to take such action on its behalf may have obligations under the provisions of this Agreement, the Collateral Security Documents and or the Intercreditor Agreements Agreement (if any) that are in conflict with the interests of the holders of the Notes and/or of holders of Permitted Pari Passu Secured Indebtedness. The Trustee and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by will be under no obligation to exercise any rights or powers conferred under the terms Indenture or any of this Agreement, the Collateral Security Documents and or the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely Agreement (if any) for the benefit of the Notes holders, unless such holders and/or holders of Permitted Pari Passu Secured Indebtedness have offered to the Trustee and the Collateral Agent indemnity and/or security satisfactory to the Trustee and none the Collateral Agent against any loss, liability or expense.
(a) The Company and each of the Administrative AgentHolders, by acceptance of any Note or Subsidiary Guarantee, hereby designate and appoint the Collateral Agent under the Security Documents in respect of the Lenderssecurity over the Collateral, and authorizes and directs the Borrower nor Trustee to appoint an intercreditor agent under and pursuant to the terms of any Intercreditor Agreement referred to in Section 4.22(b). The Trustee shall incur no liability in respect of such appointment and shall not be responsible for the acts or omissions of the Guarantors intercreditor agent. The Collateral Agent shall have any all the duties, rights as a third party beneficiary and protections provided in the Security Documents and no implied duties shall be read against the Collateral Agent.
(b) The Collateral Agent shall hold the benefit of any all Collateral under the Security Documents as, and for purposes of enforcing the provisions of the provisions contained herein other than Security Documents relating to the Collateral, all rights and claims under the Security Documents relating to the Collateral shall be vested in it as expressly provided in Section 12.03an agent for the Holders. Notwithstanding any provision to the contrary contained elsewhere in this Agreementthe Indenture, the Collateral Security Documents and or the Intercreditor AgreementsAgreement (if any), the Collateral Agent shall not have assume any duties obligation or responsibilities hereunder fiduciary duty towards or relationship of trust for or with any of the holders of the Notes or any other person.
(c) Subject to Sections 7.01, 7.02 and 10.04(d), as applicable, neither the Trustee nor shall the Collateral Agent have nor any of its officers, directors, employees, attorneys or agents will be deemed to have responsible or liable for the title, ownership, existence, genuineness, value or protection of any fiduciary relationship with Collateral, for the Administrative Agentlegality, any Lender enforceability, effectiveness, adequacy or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations sufficiency of the Security Documents or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements Agreement (if any), for the creation, perfection, priority, sufficiency, registration or protection of any Lien, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise exist against the Collateral Agent. Without limiting the generality enforce any of the foregoing sentence, the use of the term “agent” Liens or Security Documents or delay in this Agreement with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lendersdoing so.
(bd) None of the The Collateral Agent or any of its Affiliates shall the Trustee:
(i) may refrain from acting in accordance with the Security Documents or any instructions and requests until it has received to its satisfaction: (i) such compensation for its services to be rendered, (ii) it has been instructed in writing and (iii) such payment, security and/or indemnity as it may require against the costs, expenses and liabilities to be incurred in complying with the instruction or request;
(ii) may consult with or otherwise engage (at the cost and expense of the Company) legal counsel in connection with any matter arising under this Indenture or any Security Document and shall not be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant ; and
(iii) may refuse to act on any notice, direction or instruction from the Holders which, in the Collateral Agent’s or the Trustee’s opinion to be determined in its sole and absolute discretion, (i) is contrary to law or the provisions of permissive rights this Indenture or powers to the Security Documents or (ii) may expose the Collateral Agent or the Trustee to liability (unless it shall not be construed have been indemnified and/or secured to impose duties to actits satisfaction for such liability by the Holders giving such notice, direction or instruction).
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 1 contract
Collateral Agent. (a) The Administrative By their acceptance of the Notes, the Holders hereby designate and appoint the Trustee to serve as Collateral Agent and as their agent under this Indenture and the Security Documents and the Trustee and each of the Lenders hereby designates and appoints the Collateral Agent as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each Holders by acceptance of the Lenders Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture and the Security Documents, and consents and agrees to the terms of each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Trustee acknowledges that the Collateral Documents and Agent agrees to act as such on the Intercreditor Agreements, together with such powers as are reasonably incidental theretoexpress conditions contained in this Section 11.09. The provisions of this Section 12.11 11.09 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower Holders nor any of the Guarantors Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0311.03. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture and the Security Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein or therein, shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture and the Security Documents, the duties of the Collateral Documents Agent shall be ministerial and the Intercreditor Agreementsadministrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, Indenture or the Collateral Security Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) The Collateral Agent may perform any of its duties under this Indenture or the Security Documents by or through receivers, agents, employees, attorneys-in-fact or through its Related Persons and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Collateral Agent or any of its Affiliates Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Security Document or the Intercreditor Agreements or the transactions contemplated thereby (except for to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Issuer or any Guarantor, or any officer Grantor or Affiliate of any of the foregoingGrantor, or any Officer or Related Persons thereof, contained in this Indenture, or any Agreementother Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents Indenture or the Intercreditor Agreements, Security Documents or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents Indenture or the Intercreditor AgreementsSecurity Documents, or for any failure of the Borrower, any Guarantor Grantor or any other party to this Agreement, the Collateral Documents Indenture or the Intercreditor Agreements Security Documents to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement, the Collateral Documents Indenture or the Intercreditor Agreements Security Documents or to inspect the properties, books, or records of the Borrower, any Guarantor Grantor or any GuarantorGrantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized shall be entitled to rely, and directed shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (i) enter including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Documents, (ii) enter into Agent shall be fully justified in failing or refusing to take action under the Intercreditor Agreements, (iii) bind Notes Documents unless it shall first receive such advice or concurrence from the Lenders on party or parties entitled to give instructions to the Collateral Agent under the terms as set forth in of the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor AgreementsAgreement.
(e) The Administrative Collateral Agent agrees that it shall not (and shall not be obliged to), and shall not instruct deemed to have knowledge or notice of the Collateral Agent tooccurrence of any Default or Event of Default, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement a Responsible Officer of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to received written notice from the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (Trustee or the Administrative Agent) Issuer referring to expend this Indenture, describing such Default or risk its own funds or otherwise incur any financial liability in the performance Event of any Default and stating that such notice is a “notice of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to itdefault.
(i) ” The Collateral Agent (i) shall not take such action with respect to such Default or Event of Default as may be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust requested by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and Trustee in accordance with Article 7 or the advice or opinion Holders of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures a majority in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed aggregate principal amount of the likelihood thereof and regardless of the form of actionNotes (subject to this Section 11.09).
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent Issuer and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents, and the Administrative Agent Issuer and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents, and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture and the Security Documents, and consents and agrees to the terms of each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. In addition, by acceptance of the Notes, each Holder will be deemed to have, (1) irrevocably appointed Wilmington Trust, National Association, as Collateral Agent to act as its collateral agent under the DIP Security Documents and Exit Security Documents, as applicable, and any other relevant documents to which the Collateral Agent is a party, and (2) irrevocably authorized the Collateral Agent to (i) perform the duties and exercise the rights, powers, and discretions that are specifically given to it under the DIP Security Documents and the Intercreditor AgreementsExit Security Documents, as applicable, or other documents to which the Collateral Agent is a party, together with such powers as are reasonably any other incidental theretorights, power and discretions and (ii) execute each document expressed to be executed by Collateral Agent on its behalf. The Collateral Agent agrees to act as such on the express conditions contained in this Section 12.7. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Section 12.11 are solely for Indenture and the benefit of Security Documents, and the Notes exercise by the Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained or remedies set forth herein other than as expressly provided in Section 12.03and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture and the Security Documents, the duties of the Collateral Documents Agent shall be ministerial and the Intercreditor Agreementsadministrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the Security Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the The Collateral Agent or may perform any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them duties under or in connection with this Agreement Indenture or the transactions contemplated hereby Security Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (except a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for its own gross the negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate misconduct of any of the foregoingreceiver, contained agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliatesgood faith and with due care.
(c) The Collateral Agent shall be entitled to rely, and its Affiliates may make loans toshall be fully protected in relying, issue letters of credit for the account ofupon any writing, accept deposits fromresolution, acquire equity interests in and generally engage in any kind of bankingnotice, trustconsent, financial advisorycertificate, underwritingaffidavit, letter, telegram, facsimile, certification, telephone message, statement, or other business with communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the Borrowerproper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Guarantor other Grantor), independent accountants and their Affiliates as though it was not other experts and advisors selected by the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under any obligation to provide such information to the Administrative Agent this Indenture or the Lenders. Nothing herein Security Documents, unless it shall impose first receive such advice or imply any obligation on the part concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Security Documents, in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to advance fundsact pursuant thereto shall be binding upon all of the Holders.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements[Reserved].
(e) The Administrative Collateral Agent agrees that it shall not (and shall not be obliged to), and shall not instruct deemed to have knowledge or notice of the Collateral Agent tooccurrence of any Default or Event of Default, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement a Trust Officer of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to received written notice from the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (Trustee or the Administrative Agent) Issuer referring to expend this Indenture, describing such Default or risk its own funds or otherwise incur any financial liability in the performance Event of any Default and stating that such notice is a “notice of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to itdefault.
(i) ” The Collateral Agent (i) shall not take such action with respect to such Default or Event of Default as may be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust requested by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and Trustee in accordance with Article VI or the advice or opinion Holders of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures a majority in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed aggregate principal amount of the likelihood thereof and regardless of the form of actionNotes (subject to this Section 12.7).
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture, the Collateral Documents and the Equal Priority Intercreditor Agreements Agreement, and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Documents and the Equal Priority Intercreditor Agreements Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Documents and the Equal Priority Intercreditor AgreementsAgreement and consents and agrees to the terms of the Equal Priority Intercreditor Agreement and each Collateral Document, together as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as such powers as are reasonably incidental theretoon the express conditions contained in this Section 10.06. The provisions of this Section 12.11 10.06 are solely for the benefit of the Notes Collateral Agent and the Trustee and none of the Administrative Agent, any of the Lenders, the Borrower Holders nor any of the Guarantors Pledgors shall have any rights as a third third-party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0310.03. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provision of this Indenture, the Equal Priority Intercreditor Agreement and the Collateral Documents and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Documents and the Equal Priority Intercreditor AgreementsAgreement, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the Notes, the Note Guarantees and the Collateral Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorPledgor regardless of whether a Default or Event of Default shall have occurred and be continuing, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Documents and the Equal Priority Intercreditor Agreements Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the The Collateral Agent or may perform any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them duties under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this AgreementIndenture, the Collateral Documents or the Equal Priority Intercreditor AgreementsAgreement by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the validityrespective officers, effectivenessdirectors, genuinenessemployees, enforceability or sufficiency agents, advisors and attorneys-in-fact of this Agreementsuch Person and its Affiliates, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates (a “Related Person”) and shall be under entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any obligation to the Administrative Agent advice or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agentopinion given by legal counsel. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under responsible for the negligence or misconduct of any obligation to provide such information to the Administrative Agent receiver, agent, employee, attorney-in-fact or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees Related Person that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any selects as long as such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment selection was made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to actfaith.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreement and the Administrative Agent Trustee and each of the Lenders Holders, by acceptance of the Notes, hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Security Documents and the Intercreditor AgreementsAgreement, together with such powers as are reasonably incidental thereto. The Collateral Agent agrees to act as such and agrees to act pursuant to the instructions of the Holders and the Trustee with respect to the Security Documents and the Collateral on the express conditions contained in this Section 10.07. The Collateral Agent shall have all the same rights, privileges and immunities as the Trustee set forth in Article Seven of this Indenture to the extent not otherwise expressly set forth herein. The provisions of this Section 12.11 10.07 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the LendersHolders, the Borrower Issuer nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0310.02. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Security Documents and the Intercreditor AgreementsAgreement, the Collateral Agent shall not have any duties or responsibilities hereunder hereunder, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this AgreementIndenture, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this AgreementIndenture, the Collateral Security Documents and the Intercreditor AgreementsAgreement, including the exercise of remedies pursuant to Article VIIISix, and any action so taken or not taken shall be deemed consented to by the Administrative Agent Trustee and the LendersHolders.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Security Document or the Intercreditor Agreements Agreement or the transactions contemplated thereby (except for to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Issuer or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any AgreementIndenture, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreementor any other Indenture, the Collateral Security Documents or the Intercreditor AgreementsAgreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreementor any other Indenture, the Collateral Security Documents or the Intercreditor AgreementsAgreement, or for any failure of the BorrowerIssuer, any Guarantor or any other party to this AgreementIndenture, the Collateral Security Documents or the Intercreditor Agreements Agreement to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreementor any other Indenture, the Collateral Security Documents or the Intercreditor Agreements Agreement or to inspect the properties, books, or records of the BorrowerIssuer, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Guarantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreement unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified and/or secured to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes (or such larger amount of Holders as required pursuant to Section 9.02) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(d) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the BorrowerIssuer, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative AgentTrustee. The Administrative Agent Trustee and the Lenders Holders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the BorrowerIssuer, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the BorrowerIssuer, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent Trustee or the LendersHolders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(de) The Collateral Agent is authorized and directed to (i) enter into the Collateral Security Documents, (ii) enter into the Intercreditor AgreementsAgreement, (iii) enter into other customary intercreditor agreements or other lien acknowledgment agreements with respect to the assets of any Securitization Entity and related assets (including contract rights) that are sold under any Factoring Agreement or Qualified Securitization Transaction permitted under this Indenture, (iv) bind the Lenders Holders on the terms as set forth in the Collateral Security Documents and the Intercreditor Agreements Agreement and (ivv) perform and observe its obligations under the Collateral Security Documents and the Intercreditor AgreementsAgreement.
(ef) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this AgreementNotes Obligations, except for any such proceeds or payments received by the Administrative Agent Trustee from the Collateral Agent pursuant to the terms of this AgreementIndenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent Trustee pursuant to Article VIIISix, the Administrative Agent Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent. Any funds held on deposit by the Collateral Agent pending distribution shall be held on deposit under this Indenture without investment, and the Collateral Agent shall have no liability for interest or other compensation thereon.
(fg) The Administrative Agent Trustee is each LenderHolder’s agent for the purpose of perfecting the LendersHolders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code Code, can be perfected only by possession. Should the Administrative Agent Trustee obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent Trustee shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s written request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(gh) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent Trustee or any of the Lenders Holders to assure that the Collateral exists or is owned by the Borrower Issuer or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or of the Borrower Issuer’s or any Guarantor’s property constituting collateral Collateral intended to be subject to the Lien and security interest of the Collateral Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this AgreementIndenture, any Collateral Security Document or the Intercreditor AgreementsAgreement, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriateappropriate (but in accordance with the terms of the Security Documents), in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent Trustee or any Lender Holder as to any of the foregoing.
(hi) No provision of this AgreementIndenture, the Intercreditor Agreements Agreement or any Collateral Security Document shall require the Collateral Agent (or the Administrative AgentTrustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders Holders (or the Administrative Agent Trustee in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining shall have received indemnity and/or security by the pertinent facts, (ii) shall not be liable for interest on any money received by it except as Holders satisfactory to the Collateral Agent may agree in writing with the Borrower (against potential costs and money held in trust liabilities incurred by the Collateral Agent need not be segregated from other funds except relating thereto. Notwithstanding anything to the extent required by law)contrary contained in this Indenture, (iii) the Intercreditor Agreement or the Security Documents, in the event the Collateral Agent may consult with counsel is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action takenCollateral, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed required to impose duties commence any such action or exercise any remedy or to actinspect or conduct any studies of any property under the mortgages or take any such other action if the Collateral Agent has determined that the Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances unless the Collateral Agent has received security or indemnity from the Holders in an amount and in a form all satisfactory to the Collateral Agent in its sole discretion, protecting the Collateral Agent from all such liability. The Collateral Agent shall at any time be entitled to cease taking any action described above if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient.
(j) Neither The Collateral Agent does not assume any responsibility for any failure or delay in performance or any breach by the Issuer or any Guarantor under this Indenture, the Intercreditor Agreement and the Security Documents. The Collateral Agent shall not be responsible to the Holders or any other Person for any recitals, statements, information, representations or warranties contained in any Note Document or in any certificate, report, statement, or other document referred to or provided for in, or received by the Collateral Agent nor under or in connection with, this Indenture, the Administrative Intercreditor Agreement or any Security Document; the execution, validity, genuineness, effectiveness or enforceability of the Intercreditor Agreement and any Security Document of any other party thereto; the genuineness, enforceability, collectability, value, sufficiency, location or existence of any Collateral, or the validity, effectiveness, enforceability, sufficiency, extent, perfection or priority of any Lien therein; the validity, enforceability or collectability of any Obligations; the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any obligor; or for any failure of any obligor to perform its Obligations under this Indenture, the Intercreditor Agreement or any Security Document. The Collateral Agent shall be liable for delays have no obligation to any Holder or failures any other Person to ascertain or inquire into the existence of any Default or Event of Default, the observance or performance by any obligor of any terms of this Indenture, the Intercreditor Agreement and the Security Documents, or the satisfaction of any conditions precedent contained in performance resulting from acts beyond its controlthis Indenture, the Intercreditor Agreement and any Security Document. Such acts The Collateral Agent shall include but not be limited required to acts initiate or conduct any litigation or collection or other proceeding under this Indenture, the Intercreditor Agreement and the Security Documents unless expressly set forth hereunder or thereunder or if acting at the direction of Godthe Trustee or Holders holding a majority in aggregate principal amount of the then outstanding Notes. The Collateral Agent shall have the right at any time to seek instructions from the Holders with respect to the administration of the Note Documents. Subject to the terms of the Security Documents, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the factoccurrence and during the continuance of an Event of Default, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Trustee may direct the Collateral Agent nor in connection with any action required or permitted by this Indenture, the Administrative Security Documents or the Intercreditor Agreement.
(k) The parties hereto and the Holders hereby agree and acknowledge that the Collateral Agent shall not assume, be liable responsible for or otherwise be obligated for any indirectliabilities, special or consequential claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (included including foreseeable and unforeseeable), judgments, expenses and costs (including, but not limited to lost profits) whatsoeverto, even if it has been informed of the likelihood thereof and regardless of the form of any remediation, corrective action., response, removal or remedial action, or
Appears in 1 contract
Sources: Indenture (Manitowoc Co Inc)
Collateral Agent. (a) The Administrative Agent and each of the Lenders Each Secured Party hereby designates and appoints D▇▇▇▇ ▇. ▇▇▇▇ as the Collateral Agent as its agent under this Security Agreement, the Collateral Documents Amended Note, and the Intercreditor Agreements and Agreement (together, the Administrative Agent “Security Documents”) and each of the Lenders hereby irrevocably Secured Party authorizes the Collateral Agent to take such action as agent on its behalf under the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties under the Security Documents as are expressly delegated granted to the Collateral Agent by the terms of this Agreement, the Collateral Documents Secured Parties under such agreements and the Intercreditor Agreements, together with to exercise such powers as are reasonably incidental thereto. The provisions Without limiting the foregoing, each Secured Party hereby authorizes the Collateral Agent to execute and deliver, and to perform its obligations under, each of this Section 12.11 are solely the Security Documents, to exercise all rights, powers and remedies that the Secured Parties may have under the Security Documents and to act as agent for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03Secured Parties thereunder. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, the The Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable to any Secured Party for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection withwith the Security Documents, this Agreement, except for the Collateral Documents Agent’s own gross negligence or willful misconduct. Each Secured Party agrees to indemnify the Intercreditor AgreementsCollateral Agent and each of the Collateral Agent’s affiliates, and each of their respective directors, officers, employees, agents and advisors, from any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses and disbursements (including fees, expenses and disbursements of financial and legal advisors) of any kind or nature whatsoever that may be imposed on, incurred by, or the validityasserted against, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral affiliates, directors, officers, employees, agents and advisors in any way relating to or arising out of the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent Security Documents or any of the Lenders to assure that the Collateral exists action taken or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust omitted by the Collateral Agent need not be segregated from other funds except to under the extent required by law)Security Documents; provided, (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action takenhowever, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent that no Purchaser shall be liable for any indirectportion of such liabilities, special obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of disbursements resulting from the likelihood thereof and regardless of the form of actionCollateral Agent’s gross negligence or willful misconduct.
Appears in 1 contract
Sources: Security Agreement (Neoprobe Corp)
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints acknowledge the Company’s appointment of the Collateral Agent as its the Trustee’s and the Holders’ collateral agent under this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents, and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes authorize and direct the Collateral Agent to execute and deliver the Security Documents and authorize the Collateral Agent to take such action on its their behalf under the provisions of this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents Indenture and the Intercreditor AgreementsSecurity Documents, together with such powers as are reasonably incidental thereto. The Collateral Agent agrees to act as such on the express conditions contained in this Section 11.07. The provisions of this Section 12.11 11.07 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the LendersHolders, the Borrower nor Company or any of the Guarantors Domestic Subsidiaries shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03herein. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents Indenture and the Intercreditor AgreementsSecurity Documents, the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the Security Documents, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or the Company or any GuarantorDomestic Subsidiary, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral Agent is shall not intended be construed to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable lawApplicable 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 otherwise provided Notwithstanding anything else to the contrary herein, whenever reference is made in this Agreement, or any other Security 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 Collateral 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 Collateral Agent, it is understood that in all cases the Collateral Agent shall be fully justified in failing or refusing to take any such action if it shall not have and may use its sole discretion with received written instruction, advice or concurrence from the Trustee or the Holders of a majority in aggregate principal amount of the outstanding Notes in respect to exercising of such action. The Collateral Agent shall have no liability for any failure or refraining from exercising any discretionary rights or taking or refraining from delay in taking any actions which contemplated above as a result of a failure or delay on the part of any such Person to provide such instruction, advice or concurrence. This provision is intended solely for the benefit of the Collateral Agent and its successors and permitted assigns and is expressly entitled not intended to take and will not entitle the other parties hereto to any defense, claim or assert under this Agreementcounterclaim, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and or confer any action so taken rights or not taken shall be deemed consented to by the Administrative Agent and the Lendersbenefits on any party hereto.
(b) The Collateral Agent may execute any of its duties under this Indenture and the Security Documents by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and the written advice of such counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent, employee or attorney-in-fact that it selects as long as such selection was made without negligence or willful misconduct.
(c) None of the Collateral Agent or any of its Affiliates agents or employees shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Security Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Company or any Guarantor, Guarantor contained in this Indenture or any officer or Affiliate of any of the foregoing, contained in this or any AgreementSecurity Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, Indenture or any of the Collateral Documents or the Intercreditor AgreementsSecurity Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, Indenture or any of the Collateral Documents or the Intercreditor AgreementsSecurity Documents, or for any failure of the Borrower, Company or any Guarantor or any other party to this Agreement, Indenture or any of the Collateral Security Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates agents or employees shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement, Indenture or any of the Collateral Security Documents or the Intercreditor Agreements or to inspect the properties, books, books or records of the Borrower, any Guarantor Company or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance fundsPledgor.
(d) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee or the Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be directed by the Trustee acting in accordance with Article 6 (subject to this Section 11.07); provided, however, that unless and until the Collateral Agent has received any such request, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.
(e) The Collateral Agent may resign at any time by so notifying the Company and the Trustee in writing at least thirty (30) days prior to the proposed date of resignation, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. The Holders of a majority in principal amount of the then outstanding Notes may remove the Collateral Agent by so notifying the Collateral Agent, the Trustee and the Company in writing, such removal to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral Agent resigns or is removed under this Indenture, the Trustee, subject to the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), shall appoint a successor Collateral Agent. In the case of the resignation by the Collateral Agent, if no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent (as stated in the notice of resignation), the Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor Collateral Agent, which may be the same Person as the Trustee. If (i) in the case of the resignation by the Collateral Agent, no successor Collateral Agent is appointed and consented to by the Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Collateral Agent, and (ii) in the case of the removal of the Collateral Agent, if no successor Collateral Agent is appointed by the Trustee and consented to by the Company within thirty (30) days after the intended effective date of removal (as stated in the notice of removal), then in each case the Company or the Holders of at least 10% in principal amount of the then outstanding principal amount of the Notes shall be entitled to petition at the expense of the Company a court of competent jurisdiction to appoint a successor Collateral Agent. A successor Collateral Agent shall deliver a written acceptance of its appointment to the retiring Collateral Agent and to the Company. Thereupon, the resignation or removal of the retiring Collateral Agent shall become effective, and the successor Collateral Agent shall have all the rights, powers and the duties of the Collateral Agent under this Indenture and the Security Documents. The successor Collateral Agent shall mail a notice of its succession to the Trustee. The retiring Collateral Agent shall promptly transfer all property held by it as Collateral Agent to the successor Collateral Agent, provided that all sums owing to the retiring Collateral Agent hereunder have been paid. Notwithstanding the replacement of the Collateral Agent pursuant to this Section 11.07(e), the Company’s obligations under this Section 11.07 and Section 11.12 shall continue for the benefit of the retiring Collateral Agent.
(f) Except as otherwise explicitly provided herein or in the Security Documents, neither the Collateral Agent nor any of its officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. 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.
(g) The Collateral Agent is authorized and directed by the Trustee and the Holders and the Holders by acquiring the Notes are deemed to have authorized the Collateral Agent to (i) enter into the Collateral DocumentsSecurity Documents to which it is a party, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders Trustee and the Holders on the terms as set forth in the Collateral such Security Documents and the Intercreditor Agreements and (iviii) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreementssuch Security Documents.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(gh) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent Trustee or any of the Lenders Holders (and the Trustee shall have no obligation whatsoever to the Holders) to assure that the Collateral exists or is owned by the Borrower or any Guarantor Company and the other Pledgors or is cared for, protected, protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or of the Borrower or any GuarantorGrantor’s property constituting collateral Collateral intended to be subject to the Lien and security interest of the Collateral Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which that it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officeran authorized officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower Company (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), and (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counselreliance thereon. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither It is hereby understood that the Dutch Parallel Debt (as defined in the Dutch Pledge Agreement) has been included in the Dutch Pledge Agreement for the purpose of determining the secured obligations in any Collateral that is governed by Dutch law, and in relation to such Dutch Parallel Debt:
(i) the Collateral Agent, solely for the legal purposes required under Dutch law, shall act in its own name and not as agent of any Secured Party (but always for the benefit of the Secured Parties in accordance with the provisions of this Indenture, the Notes and the Security Documents);
(ii) the rights, powers and authorities vested in the Collateral Agent nor pursuant to this Indenture, the Administrative Notes, the Security Documents, the Subsidiary Guarantees and any other agreements or instruments required to be executed pursuant to the terms thereof are subject to any restrictions imposed by mandatory Dutch law; and
(iii) the Collateral Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited entitled to acts accept the Dutch Parallel Debt on behalf of Godeach of the Secured Parties, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after notwithstanding the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither foregoing.
(k) If the Collateral Agent nor resigns or is removed in accordance with this Section 11.07, EOC shall execute such documents and take such other action as is necessary or desirable (or as may otherwise be requested by the Administrative Trustee) in connection with the substitution, in accordance with Applicable Law, of the successor Collateral Agent as creditor of the Dutch Parallel Debt and as beneficiary of the Dutch Pledge Agreement securing the Dutch Parallel Debt.
(l) If the Collateral Agent consolidates with, or merges or converts into, or transfers or sells all or substantially all of its corporate trust business or assets to, another corporation or banking association, the successor corporation or banking association without any further act shall be the successor Collateral Agent. As soon as practicable, the successor Collateral Agent shall be liable for any indirect, special or consequential damages (included but not limited mail a notice of its succession to lost profits) whatsoever, even if it has been informed the Company and the Holders of the likelihood thereof and regardless of the form of actionNotes.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent The Bank of New York Mellon Trust Company, N.A., as its agent under this Agreement, Indenture and the Collateral Security Documents and the Intercreditor Agreements and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent The Bank of New York Mellon Trust Company, N.A. to take such action on its behalf under the provisions of this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents Indenture and the Intercreditor AgreementsSecurity Documents, together with such powers as are reasonably incidental thereto. The Collateral Agent agrees to act as such on the express conditions contained in this Section 12.10. The provisions of this Section 12.11 12.10 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, Holders nor the Borrower nor Issuer or any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in this Section 12.10 and in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents Indenture and the Intercreditor AgreementsSecurity Documents, the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or the Issuer or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents or otherwise exist against the Collateral AgentAgent other than as a “representative” as such term is used in Section 9-102(a)(72)(E) of the Uniform Commercial Code. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this AgreementIndenture, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents Indenture and the Intercreditor AgreementsSecurity Documents, including the exercise of remedies pursuant to Article VIIIVI, and any action so taken or not taken shall be deemed consented to by the Administrative Agent Trustee and the LendersHolders.
(b) The Collateral Agent may execute any of its duties under this Indenture or the Security Documents by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent, employee or attorney-in-fact that it selects as long as such selection was made without negligence or willful misconduct.
(c) None of the Collateral Agent or any of its Affiliates agents or employees shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Security Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Issuer or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any AgreementIndenture, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or any other Indenture or the Intercreditor AgreementsSecurity Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or any other Indenture or the Intercreditor AgreementsSecurity Documents, or for any failure of the Borrower, Issuer or any Guarantor or any other party to this Agreement, the Collateral Documents Indenture or the Intercreditor Agreements Security Documents to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates agents or employees shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement, the Collateral Documents or any other Indenture or the Intercreditor Agreements Security Documents or to inspect the properties, books, books or records of the Borrower, any Guarantor Issuer or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed shall be entitled to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to)rely, and shall not instruct the Collateral Agent tobe fully protected in relying, unless specifically requested upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, statement or other document or conversation believed by it to do so be genuine and correct and to have been signed, sent or made by the Required Lendersproper Person or Persons, take or cause and upon advice and statements of legal counsel (including, without limitation, counsel to be taken any action to enforce its rights under this Agreement or against the Borrower Issuer or any Guarantor), including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) independent accountants and other experts and advisors selected by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent be fully justified in failing or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit refusing to take any action hereunder under this or thereunder any other Indenture or the Security Documents unless it shall first receive such advice or concurrence of the Trustee as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) action. The Collateral Agent (i) shall not in all cases be liable for any action it takes or omits to take fully protected in good faith which it reasonably believes to be authorized or within its rights or powersacting, or for in refraining from acting, under this or any error of judgment made in good faith by a Responsible Officer, unless it is proved that other Indenture or the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and Security Documents in accordance with a request or consent of the advice Trustee and such request and any action taken or opinion of such counsel. The grant of permissive rights or powers failure to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent act pursuant thereto shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed binding upon all of the likelihood thereof and regardless of the form of actionHolders.
Appears in 1 contract
Sources: Indenture (Merge Healthcare Inc)
Collateral Agent. (a) The Administrative Agent Each Issuer and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents, and the Administrative Agent Issuer and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents, and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture and the Security Documents, and consents and agrees to the terms of each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. In addition, by acceptance of the Notes, each Holder will be deemed to have, (1) irrevocably appointed JPMorgan Chase Bank, N.A., as Collateral Agent to act as its collateral agent under the DIP Security Documents and Exit Security Documents, as applicable, and any other relevant documents to which the Collateral Agent is a party, and (2) irrevocably authorized the Collateral Agent to (i) perform the duties and exercise the rights, powers, and discretions that are specifically given to it under the DIP Security Documents and the Intercreditor AgreementsExit Security Documents, as applicable, or other documents to which the Collateral Agent is a party, together with such powers as are reasonably any other incidental theretorights, power and discretions and (ii) execute each document expressed to be executed by Collateral Agent on its behalf. The Collateral Agent agrees to act as such on the express conditions contained in this Section 12.7. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Section 12.11 are solely for Indenture and the benefit of Security Documents, and the Notes exercise by the Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained or remedies set forth herein other than as expressly provided in Section 12.03and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture and the Security Documents, the duties of the Collateral Documents Agent shall be ministerial and the Intercreditor Agreementsadministrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the Security Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the The Collateral Agent or may perform any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them duties under or in connection with this Agreement Indenture or the transactions contemplated hereby Security Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (except a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for its own gross the negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate misconduct of any of the foregoingreceiver, contained agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliatesgood faith and with due care.
(c) The Collateral Agent shall be entitled to rely, and its Affiliates may make loans toshall be fully protected in relying, issue letters of credit for the account ofupon any writing, accept deposits fromresolution, acquire equity interests in and generally engage in any kind of bankingnotice, trustconsent, financial advisorycertificate, underwritingaffidavit, letter, telegram, facsimile, certification, telephone message, statement, or other business with communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the Borrowerproper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Guarantor other Grantor), independent accountants and their Affiliates as though it was not other experts and advisors selected by the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under any obligation to provide such information to the Administrative Agent this Indenture or the Lenders. Nothing herein Security Documents, unless it shall impose first receive such advice or imply any obligation on the part concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Security Documents, in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to advance fundsact pursuant thereto shall be binding upon all of the Holders.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements[Reserved].
(e) The Administrative Collateral Agent agrees that it shall not (and shall not be obliged to), and shall not instruct deemed to have knowledge or notice of the Collateral Agent tooccurrence of any Default or Event of Default, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement a Trust Officer of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to received written notice from the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (Trustee or the Administrative Agent) Issuer referring to expend this Indenture, describing such Default or risk its own funds or otherwise incur any financial liability in the performance Event of any Default and stating that such notice is a “notice of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to itdefault.
(i) ” The Collateral Agent (i) shall not take such action with respect to such Default or Event of Default as may be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust requested by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and Trustee in accordance with Article VI or the advice or opinion Holders of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures a majority in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed aggregate principal amount of the likelihood thereof and regardless of the form of actionNotes (subject to this Section 12.7).
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent Issuer and each of the Lenders Holders by acceptance of the Notes, and each beneficial owner of an interest in a Note, hereby designates and appoints the U.S. Bank National Association as Collateral Agent and, in such capacity, as its agent under this AgreementIndenture, the Collateral Documents Security Documents, the Intercreditor Agreement and any other Acceptable Intercreditor Agreement and the Intercreditor Agreements Issuer directs and the Administrative Agent authorizes and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Documents and Security Documents, the Intercreditor Agreements Agreement and any other Acceptable Intercreditor Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture, the Security Documents, the Intercreditor Agreement any other Acceptable Intercreditor Agreement, and consents and agrees to the Collateral Documents and terms of the Intercreditor AgreementsAgreement, together each Security Document and any other Acceptable Intercreditor Agreement, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms or the terms of this Indenture. The Collateral Agent agrees to act as such powers as are reasonably incidental theretoon the express conditions contained in this Section 10.08. The provisions of this Section 12.11 10.08 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower Holders nor any of the Guarantors Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provision of this Indenture, the Intercreditor Agreement any other Acceptable Intercreditor Agreement and/or the applicable Security Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein other than as expressly provided in Section 12.03and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Security Documents, the Intercreditor Agreement and any other Acceptable Intercreditor Agreement, the duties of the Collateral Documents Agent shall be ministerial and the Intercreditor Agreementsadministrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Documents and Security Documents, the Intercreditor Agreements Agreement or any other Acceptable Intercreditor Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None The Collateral Agent may perform any of its duties under this Indenture, the Security Documents, the Intercreditor Agreement or any other Acceptable Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) Neither the Collateral Agent or nor any of its Affiliates Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own the willful misconduct or gross negligence of the Collateral Agent or willful misconductsuch Related Persons, as determined by a final, non-appealable judgment of a court of competent jurisdiction) or under or in connection with any Collateral Security Document or the Intercreditor Agreements Agreement or any other Acceptable Intercreditor Agreement or the transactions contemplated thereby (except for its own the willful misconduct or gross negligence of the Collateral Agent or willful misconductsuch Related Persons, as determined by a final, non-appealable judgment of a court of competent jurisdiction), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Issuer or any Guarantor, or any officer other Grantor or Affiliate of any of the foregoingGrantor, or any Officer or Related Person thereof, contained in this Indenture, or any Agreementother Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this AgreementIndenture, the Collateral Documents or Security Documents, the Intercreditor AgreementsAgreement or any other Acceptable Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this AgreementIndenture, the Collateral Documents or Security Documents, the Intercreditor AgreementsAgreement or any other Acceptable Intercreditor Agreement, or for any failure of the Borrower, any Guarantor Grantor or any other party to this AgreementIndenture, the Collateral Documents or Security Documents, the Intercreditor Agreements Agreement or any other Acceptable Intercreditor Agreement to perform its obligations hereunder or thereunder. None of the No Collateral Agent or nor any of its Affiliates their respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this AgreementIndenture, the Collateral Documents or Security Documents, the Intercreditor Agreements Agreement or any other Acceptable Intercreditor Agreement or to inspect the properties, books, or records of the Borrower, any Guarantor Grantor or any GuarantorGrantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized shall be entitled to rely, and directed shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, e-mail, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (i) enter including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and/or other experts and advisors selected by the Collateral Agent. No Collateral Agent shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. Unless otherwise expressly required hereunder or pursuant to any Security Document, the Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents, (ii) enter into the Intercreditor AgreementsAgreement or any other Acceptable Intercreditor Agreement unless it shall first receive such written advice or concurrence of the Trustee or the Holders of at least a majority in aggregate principal amount of the Notes as it determines and, (iii) bind if it so requests, it shall first be indemnified to its satisfaction by the Lenders on Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected from claims by any Holders in acting, or in refraining from acting, under this Indenture, the terms as set forth in the Collateral Documents and Security Documents, the Intercreditor Agreements Agreement or any other Acceptable Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders of at least a majority in aggregate principal amount of the then outstanding Notes and (iv) perform such request and observe its obligations under any action taken or failure to act pursuant thereto shall be binding upon all of the Collateral Documents and the Intercreditor AgreementsHolders.
(e) The Administrative No Collateral Agent agrees that it shall not (and shall not be obliged to)deemed to have knowledge or notice of the occurrence of any Default or Event of Default, and shall not instruct unless a Trust Officer of the Collateral Agent toshall have received written notice from the Trustee or the Issuer referring to this Indenture, unless specifically requested to do so by the Required Lenders, take describing such Default or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement Event of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any Default and stating that such notice is a “notice of the Collateral. If at any time or times the Administrative default.” The Collateral Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments take such action with respect to the Obligations arising under, such Default or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms Event of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements Default as may be required requested by the Trustee in accordance with Article 6 or the Holders of at least a majority in aggregate principal amount of the Notes (subject to negotiate the same to the Collateral Agentthis Section 10.08).
(f) The Administrative Collateral Agent is each Lender’s may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possessionto its appointment as Collateral Agent. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify If the Collateral Agent thereofresigns under this Indenture, and, promptly upon the Collateral Agent’s request therefor Issuer shall deliver such Collateral appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent or otherwise deal with such Collateral (as stated in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any notice of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretoresignation), the Collateral Agent may act in any manner it may deem appropriateappoint, in its sole discretion given after consulting with the Collateral Agent’s own interest Trustee, subject to the consent of the Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the Collateral and that notice of resignation) the Collateral Agent shall have no other duty or liability whatsoever be entitled to petition a court of competent jurisdiction (as the Administrative Agent or any Lender as to any expense of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative AgentIssuer) to expend or risk its own funds or otherwise incur any financial liability in appoint a successor. Upon the performance of any acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the retiring Collateral Agent) if it , and the term “Collateral Agent” shall have reasonable grounds for believing that repayment of mean such funds is not assured to it.
(i) The successor collateral agent, and the retiring Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powersAgent’s appointment, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except powers and duties as the Collateral Agent may agree in writing with shall be terminated. After the Borrower retiring Collateral Agent’s resignation hereunder, the provisions of this Section 10.08 (and money held in trust by the Collateral Agent need not be segregated from other funds except Section 7.06) shall continue to the extent required by law), (iii) the Collateral Agent may consult with counsel of inure to its selection benefit and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the retiring Collateral Agent shall not by reason of such resignation be construed deemed to impose duties be released from liability as to act.
(j) Neither any actions taken or omitted to be taken by it while it was the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionunder this Indenture.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent Each Issuer and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents, and the Administrative Agent Issuer and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents, and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture and the Security Documents, and consents and agrees to the terms of each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. In addition, by acceptance of the Notes, each Holder will be deemed to have, (1) irrevocably appointed JPMorgan Chase Bank, N.A., as Collateral Agent to act as its collateral agent under the DIP Security Documents and Exit Security Documents, as applicable, and any other relevant documents to which the Collateral Agent is a party, and (2) irrevocably authorized the Collateral Agent to (i) perform the duties and exercise the rights, powers, and discretions that are specifically given to it under the DIP Security Documents and the Intercreditor AgreementsExit Security Documents, as applicable, or other documents to which the Collateral Agent is a party, together with such powers as are reasonably any other incidental theretorights, power and discretions and (ii) execute each document expressed to be executed by Collateral Agent on its behalf. The Collateral Agent agrees to act as such on the express conditions contained in this Section 12.7. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Section 12.11 are solely for Indenture and the benefit of Security Documents, and the Notes exercise by the Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained or remedies set forth herein other than as expressly provided in Section 12.03and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture and the Security Documents, the duties of the Collateral Documents Agent shall be ministerial and the Intercreditor Agreementsadministrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the Security Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the The Collateral Agent or may perform any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them duties under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence Security Documents by or willful misconduct) through receivers, agents, employees, attorneys-in-fact or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner respect to any of the Administrative Agent or any Lender for any recitalspecified Person, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantorsuch Person’s Affiliates.
(c) The Collateral Agent , and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates may make loans to(a “Related Person”), issue letters and shall be entitled to advice of credit for the account ofcounsel concerning all matters pertaining to such duties, accept deposits fromand shall be entitled to act upon, acquire equity interests and shall be fully protected in and generally engage taking action in reliance upon any kind of banking, trust, financial advisory, underwriting, advice or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agentopinion given by legal counsel. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under responsible for the negligence or misconduct of any obligation to provide such information to the Administrative Agent receiver, agent, employee, attorney-in-fact or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees Related Person that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any selects as long as such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment selection was made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing and with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to actdue care.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent and each Each of the Lenders Fund Guarantors hereby designates and irrevocably appoints the Collateral Agent as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action actions on its behalf under the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Reimbursement Documents and the Intercreditor AgreementsAgreement, together with such actions and powers as are reasonably incidental thereto. The provisions Each bank serving as Collateral Agent hereunder and its Affiliates may accept deposits from, lend money to and generally engage in any kind of this Section 12.11 are solely banking, trust or other business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Collateral Agent hereunder and may accept fees and other consideration from the Borrower for services in connection with the Reimbursement Documents or otherwise without having to account for the benefit of same to the Notes Fund Guarantors. The Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall not have any rights as a third party beneficiary of any of duties or obligations except those expressly set forth in the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Reimbursement Documents and the Intercreditor AgreementsAgreement. Without limiting the generality of the foregoing, (a) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Reimbursement Documents and the Intercreditor Agreement that the Collateral Agent is required to exercise in writing by the Fund Guarantors, and (c) except as expressly set forth in the Reimbursement Documents and the Intercreditor Agreement, the Collateral Agent shall not have any duties or responsibilities hereunder duty to disclose, nor shall be liable for the Collateral Agent have or be deemed failure to have any fiduciary relationship with the Administrative Agentdisclose, any Lender information relating to the Borrower or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference Subsidiaries that is communicated to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to obtained by the Administrative Agent and the Lenders.
(b) None of the bank serving as Collateral Agent or any of its their Affiliates in any capacity. The Collateral Agent shall (i) not be liable for any action taken or not taken by it with the consent or at the request of the Fund Guarantors or otherwise in the absence of its own gross negligence or willful misconduct as determined in a final judgment by a court of competent jurisdiction. The Collateral Agent shall not be deemed to have knowledge of any Default unless and until written notice thereof is given to the Collateral Agent by the Borrower or a Fund Guarantor, and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with the Reimbursement Documents, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with the Reimbursement Documents, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in the Reimbursement Documents, (iv) the validity, enforceability, effectiveness or genuineness of the Reimbursement Documents or any other agreement, instrument or document, or the validity, perfection, or priority of any Lien created by any of the Reimbursement Documents, or (v) the satisfaction of any condition set forth in Section 4.01 or elsewhere in the Reimbursement Documents, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent. The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Collateral Agent may perform any of and all its duties and exercise its rights and powers by or through any one or more sub-agents or attorneys-in-fact appointed by the Collateral Agent. The Collateral Agent and any such sub-agent or attorney-in-fact may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent or attorney-in-fact and to the Related Parties of the Collateral Agent and any such sub-agent or attorney-in-fact, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Collateral Agent. Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any time by notifying the Fund Guarantors and the Borrower and the Collateral Agent may be removed at any time with or without cause by the Fund Guarantors. Upon any such resignation, the Fund Guarantors shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Fund Guarantors and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Fund Guarantors, appoint a successor Collateral Agent that shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Collateral Agent by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations under the Reimbursement Documents. The fees payable by the Borrower and/or the Fund Guarantors to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and/or the Fund Guarantors, as the case may be, and such successor. After a Collateral Agent's resignation, the provisions of this Article shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and attorneys-in-fact and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any while it was acting as Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct)Agent. Each Fund Guarantor acknowledges that it has, or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of independently and without reliance upon the Collateral Agent or any of other Fund Guarantor and based on such documents and information as it has deemed appropriate, made its Affiliates shall be under any obligation own credit analysis and decision to enter into this Agreement. Each Fund Guarantor also acknowledges that it will, independently and without reliance upon the Administrative Collateral Agent or any Lender other Fund Guarantor and based on such documents and information as it shall from time to ascertain time deem appropriate, continue to make its own decisions in taking or to inquire as to not taking action under or based upon the observance or performance of any of the agreements contained in, or conditions of, this Agreement, the Collateral Reimbursement Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor related agreement or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters document furnished hereunder or thereunder. Except for action expressly required of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of by the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activitiesReimbursement Documents, the Collateral Agent shall in all cases be fully justified in failing or refusing to act under the Reimbursement Documents unless it shall receive further assurances to its Affiliates may receive information regarding satisfaction from the BorrowerBorrower of its indemnification obligations under Section 8.11 in respect of such action. Without limiting the foregoing, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under have any obligation to provide such information liability or responsibility with respect to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part sufficiency of the Collateral Agent documents furnished pursuant to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (Section 4.01 and shall not be obliged required to), and shall not instruct not, take any action to enforce any of its or the Collateral Agent toFund Guarantors' rights under, unless specifically requested nor waive or amend any provision of, the Reimbursement Documents or any collateral, nor give any notice or make any request or demand or filing thereunder, except in each instance as and to the extent instructed to do so by the Required LendersFund Guarantors, and the Collateral Agent shall not have any liability for failure to take or cause to be taken any action to enforce its rights under this Agreement or against in the Borrower or any Guarantorabsence of such instructions, including provided that the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Collateral Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect will promptly send to the Obligations arising underFund Guarantors a copy of each notice, request or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from other document delivered to the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, Reimbursement Documents and with will take such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned actions contemplated by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Reimbursement Documents has been properly and completely listed or delivered, as the case Fund Guarantors may bereasonably instruct, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed except that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest nothing in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document Reimbursement Documents shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent that in the case reasonable opinion of the Collateral Agent) if it shall have reasonable grounds for believing that repayment Agent would be contrary to the terms of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes the Reimbursement Documents or omits to take in good faith which it reasonably believes to be authorized applicable law or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that subject the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable to personal liability for interest on any money received by which it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to actwould have no claim for indemnification hereunder.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 1 contract
Sources: Reimbursement Agreement (Memc Electronic Materials Inc)
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints acknowledge the Company’s appointment of the Collateral Agent as its the Trustee’s and the Holders’ collateral agent under this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents, and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes authorize the Collateral Agent to take such action on its their behalf under the provisions of this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents Indenture and the Intercreditor AgreementsSecurity Documents, together with such powers as are reasonably incidental thereto. The Collateral Agent agrees to act as such on the express conditions contained in this Section 13.05. The provisions of this Section 12.11 13.05 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the LendersHolders, the Borrower nor Company or any of the other Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03herein. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents Indenture and the Intercreditor AgreementsSecurity Documents, the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the Security Documents, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or the Company or any other Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral Agent is shall not intended be construed 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) The Collateral Agent may execute any of its duties under this Indenture and the Security Documents by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and the written advice of such counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent, employee or attorney-in-fact that it selects as long as such selection was made without negligence or willful misconduct.
(c) None of the Collateral Agent or any of its Affiliates agents or employees shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence negligence, bad faith or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements Security Documents or the transactions contemplated thereby (except for its own gross negligence negligence, bad faith or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Company or any Guarantor, other Guarantor contained in this Indenture or any officer or Affiliate of any of the foregoing, contained in this or any AgreementSecurity Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, Indenture or any of the Collateral Documents or the Intercreditor AgreementsSecurity Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, Indenture or any of the Collateral Documents or the Intercreditor AgreementsSecurity Documents, or for any failure of the Borrower, Company or any other Guarantor or any other party to this Agreement, Indenture or any of the Collateral Security Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates agents or employees shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement, Indenture or any of the Collateral Security Documents or the Intercreditor Agreements or to inspect the properties, books, books or records of the Borrower, any Guarantor Company or any other Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee or the Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee acting in accordance with Article 6 (subject to this Section 13.05 and Section 13.08); provided, however, that unless and until the Collateral Agent has received any such request, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.
(e) The Collateral Agent may resign at any time by so notifying the Company and the Trustee in writing at least thirty (30) days prior to the proposed date of resignation, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral Agent resigns under this Indenture, the Trustee, subject to the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), shall appoint a successor Collateral Agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent (as stated in the notice of resignation), the Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor Collateral Agent, which may be the same Person as the Trustee. If no successor Collateral Agent is appointed and consented to by the Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation), the Collateral Agent, the Company or the Holders of at least 10% in principal amount of the then outstanding principal amount of the Notes shall be entitled to petition at the expense of the Company a court of competent jurisdiction to appoint a successor Collateral Agent. A successor Collateral Agent shall deliver a written acceptance of its appointment to the retiring Collateral Agent and to the Company. Thereupon, the resignation of the retiring Collateral Agent shall become effective, and the successor Collateral Agent shall have all the rights, powers and the duties of the Collateral Agent under this Indenture and the Security Documents. The successor Collateral Agent shall mail a notice of its succession to the Trustee. The retiring Collateral Agent shall promptly transfer all property held by it as Collateral Agent to the successor Collateral Agent, provided that all sums owing to the retiring Collateral Agent hereunder have been paid. Notwithstanding the replacement of the Collateral Agent pursuant to this Section 13.05(e), the Company’s obligations under this Section 13.05 and Section 7.06 shall continue for the benefit of the retiring Collateral Agent.
(f) Except as otherwise explicitly provided herein or in the Security Documents, neither the Collateral Agent nor any of its officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. 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.
(g) The Trustee is authorized and directed by the Holders and the Holders by acquiring the Notes are deemed to have authorized the Trustee, as applicable, to (i) enter into the Collateral DocumentsSecurity Documents to which it is a party, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders Holders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and such Security Documents, (iviii) perform and observe its obligations and exercise its rights and powers under such Security Documents, including entering into amendments permitted by the Collateral terms of this Indenture or the Security Documents and the Intercreditor Agreements.
(eiv) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct cause the Collateral Agent to, unless specifically requested to do so enter into and perform its obligations under the Security Documents. The Collateral Agent is authorized and directed by the Required Lenders, take or cause Trustee and the Holders and the Holders by acquiring the Notes are deemed to be taken any action to enforce its rights under this Agreement or against have authorized the Borrower or any Guarantor, including the commencement of any legal or equitable proceedingsCollateral Agent, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by paymententer into the Security Documents to which it is a party, foreclosure(ii) bind the Trustee and the Holders on the terms as set forth in such Security Documents and (iii) perform and observe its obligations and exercise its rights and powers under such Security Documents, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received including entering into amendments permitted by the Administrative Agent from terms of this Indenture or the Collateral Agent pursuant Security Documents. Each Holder, by its acceptance of a Note, is deemed to have consented and agreed to the terms of each Security Document, as originally in effect and as amended, restated, replaced, supplemented or modified from time to time in accordance with its terms or the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral AgentIndenture.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(gh) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent Trustee or any of the Lenders Holders to assure that the Collateral exists or is owned by the Borrower Company or any Guarantor of the other Guarantors or is cared for, protected, protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or of the Borrower or any Guarantor’s property constituting collateral Collateral intended to be subject to the Lien and security interest of the Collateral Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which that it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officeran authorized officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower Company (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), and (iii) the Collateral Agent may consult with counsel of its selection and the written advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counselreliance thereon. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither . For the avoidance of doubt, nothing herein shall require the Collateral Agent nor to file financing statements or continuation statements, or be responsible for maintaining the Administrative Agent security interests purported to be created by the Security Documents (except for the safe custody of any Collateral in its possession and the accounting for moneys actually received by it under this Indenture or any Security Document) and such responsibility shall be liable for delays or failures in performance resulting from acts beyond its controlsolely that of the Company. Such acts shall include but not be limited Notwithstanding anything else to acts of Godthe contrary herein, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor shall not have any duty to take any discretionary action or exercise any discretionary powers, except, subject to Section 13.08, discretionary rights and powers required in writing by the Administrative Holders of at least a majority in aggregate principal amount of the Notes then outstanding (or such other number or percentage of the aggregate principal amount of Notes as shall be necessary under the circumstances as provided in the Indenture). Whenever reference is made in any Security Documents 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 Collateral 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 Collateral Agent, it is understood that in all cases the Collateral Agent shall have no duty and shall be liable for fully justified in failing or refusing to take any indirectsuch action under the Security Documents unless, special or consequential damages (included but not limited subject to lost profits) whatsoeverSection 13.08, even if it has been informed shall have received written instructions from the Holders of at least a majority in aggregate principal amount of the likelihood thereof and regardless Notes then outstanding (or such other number or percentage of the form aggregate principal amount of actionNotes as shall be necessary under the circumstances as provided in the Indenture). The Collateral Agent may refuse to act if in the Collateral Agent’s opinion such action (i) is contrary to law or the provisions of any Security Documents; (ii) may expose the Collateral Agent to financial or personal liability (unless the Collateral Agent shall have received indemnity and security to its satisfaction for such liability); or (iii) is unduly prejudicial to Secured Parties not joining in such notice, consent, direction or instruction.
Appears in 1 contract
Sources: Restructuring Support Agreement (Global Brokerage, Inc.)
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders, by its acceptance of the Notes, hereby designates designate and appoints appoint the Collateral Agent as its their agent under this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements Agreement, and the Administrative Agent Trustee and each of the Lenders Holders, by its acceptance of the Notes, hereby irrevocably authorizes authorize the Collateral Agent to take such action on its their behalf under the provisions of this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Documents and the Intercreditor AgreementsAgreement and consent and agree to the terms of the Intercreditor Agreement and each Collateral Document, together as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as such powers as are reasonably incidental theretoon the express conditions contained in this Section 10.06. The provisions of this Section 12.11 10.06 are solely for the benefit of the Notes Collateral Agent Agent, and none of the Administrative Agent, any of the LendersTrustee, the Borrower Holders nor any of the Guarantors Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0310.03. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provision of this Indenture, the Intercreditor Agreement and the Collateral Documents and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Documents and the Intercreditor AgreementsAgreement, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the other Indenture Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the .
(b) The Collateral Agent shall have and may use perform any of its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert duties under this AgreementIndenture, the Collateral Documents or the Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the Intercreditor Agreementsrespective officers, including the exercise directors, employees, agents, advisors and attorneys-in-fact of remedies pursuant such Person and its Affiliates (a “Related Person”) and shall be entitled to Article VIIIadvice of counsel concerning all matters pertaining to such duties, and any action so taken or not taken shall be deemed consented entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the Administrative Agent and the Lendersnegligence of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made with due care.
(bc) None of the Collateral Agent or any of its Affiliates respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), ) or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Issuer or any Guarantor, or any officer other Grantor or Affiliate of any of the foregoingGrantor, or any Officer or Related Person thereof, contained in this Indenture or any Agreementother Indenture Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this AgreementIndenture, the Collateral Documents or the Intercreditor AgreementsAgreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this AgreementIndenture, the Collateral Documents or the Intercreditor AgreementsAgreement, or for any failure of the Borrower, any Guarantor Grantor or any other party to this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements Agreement or to inspect the properties, books, books or records of the Borrower, any Guarantor Grantor or any GuarantorGrantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed shall be entitled to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to)conclusively rely, and shall not instruct the Collateral Agent tobe fully protected in relying, unless specifically requested upon any writing, resolution, notice, consent, certificate, affidavit, letter, facsimile, certification, telephone message, statement or other communication, document or conversation (including those by telephone or electronic mail) believed by it to do so be genuine and correct and to have been signed, sent or made by the Required Lendersproper Person or Persons, take or cause and upon advice and statements of legal counsel (including, without limitation, counsel to be taken any action to enforce its rights under this Agreement or against the Borrower Issuer or any Guarantorother Grantor), including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) independent accountants and other experts and advisors selected by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever not be bound to make any investigation into the Administrative Agent facts or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or matters stated in any particular manner resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or under any duty of care, disclosure, other paper or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to document. Before the Collateral Agent pursuant to this Agreement, any Collateral Document acts or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action refrains from acting at the request or direction of Lenders (the Issuer or a Guarantor as expressly provided in a Collateral Document or the Administrative Agent in the case Intercreditor Agreement, it may require an Officer’s Certificate and an Opinion of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) Counsel. The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes in reliance on such Officer’s Certificate or Opinion of Counsel. Subject to be authorized or within its rights or powersthe terms of the Collateral Documents and the Intercreditor Agreement, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved each other case that the Collateral Agent was grossly negligent may or is required hereunder or under any other Indenture Document to take any action (an “Action”), including without limitation to make any determination, to give consents, to exercise rights, powers or remedies, to release or sell Collateral or otherwise to act hereunder or under any other Indenture Document, the Collateral Agent may seek direction from the Holders of a majority in ascertaining aggregate principal amount of the pertinent facts, (ii) then outstanding Notes. The Collateral Agent shall not be liable for interest on with respect to any money received Action taken or omitted to be taken by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes or opinion any action taken or omitted to be taken by it in accordance with any direction as contemplated by the Collateral Documents. Subject to the terms of the Collateral Documents, if the Collateral Agent shall request direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes with respect to any Action, the Collateral Agent shall be entitled to refrain from such counsel. The grant Action unless and until the Collateral Agent shall have received direction and indemnity satisfactory to it from the Holders of permissive rights or powers to a majority in aggregate principal amount of the then outstanding Notes, and the Collateral Agent shall not be construed incur liability to impose duties to actany Person by reason of so refraining.
(je) Neither The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Collateral Agent nor shall have received written notice from the Administrative Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 7 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 10.06 and the terms of the Intercreditor Agreement and the Collateral Documents).
(f) The Collateral Agent may resign at any time by giving thirty (30) days’ written notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral Agent provides written notice of its resignation under this Indenture, the Issuer shall appoint a successor Collateral Agent. If no successor Collateral Agent is appointed by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation), the Collateral Agent shall be liable for delays or failures in performance resulting from acts beyond entitled to petition a court of competent jurisdiction to appoint a successor at the expense of the Issuer. Upon the acceptance of its control. Such acts appointment as successor Collateral Agent hereunder, such successor Collateral Agent shall include but not be limited succeed to acts all the rights, powers and duties of Godthe retiring Collateral Agent, strikesand the term “Collateral Agent” shall mean such successor Collateral Agent, lockoutsand the retiring Collateral Agent’s appointment, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither powers and duties as the Collateral Agent nor shall be terminated. After the Administrative retiring Collateral Agent’s resignation hereunder, the provisions of this Section 10.06 and Section 7.07 shall continue to inure to its benefit, and the retiring Collateral Agent shall not by reason of such resignation be liable for deemed to be released from liability as to any indirect, special actions taken or consequential damages (included but not limited omitted to lost profits) whatsoever, even if be taken by it has been informed of while it was the likelihood thereof and regardless of the form of actionCollateral Agent under this Indenture.
Appears in 1 contract
Sources: Indenture (StoneX Group Inc.)
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements, together and consents and agrees to the terms of the Intercreditor Agreements and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as such powers as are reasonably incidental theretoon the express conditions contained in this Section 12.9. The provisions of this Section 12.11 12.9 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower Holders nor any of the Guarantors Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0312.4. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provision of this Indenture, the Intercreditor Agreements and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the -120- Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the .
(b) The Collateral Agent shall have and may use perform any of its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert duties under this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the Intercreditor Agreementsrespective officers, including the exercise directors, employees, agents, advisors and attorneys-in-fact of remedies pursuant such Person and its Affiliates, (a “Related Person”) and shall be entitled to Article VIIIadvice of counsel concerning all matters pertaining to such duties, and any action so taken or not taken shall be deemed consented entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the Administrative Agent and the Lendersnegligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(bc) None of the Collateral Agent or any of its Affiliates respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Issuer, the Co-Issuer or any Guarantor, or any officer other Grantor or Affiliate of any of the foregoingGrantor, or any Officer or Related Person thereof, contained in this Indenture, or any Agreementother Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor Grantor or any other party to this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor Grantor or any GuarantorGrantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized shall be entitled to rely, and directed shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (i) enter including, without limitation, counsel to the Issuers or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral DocumentsAgent shall be fully justified in failing or refusing to take any action under this Indenture, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and (iv) perform all liability and observe its obligations expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents and or the Intercreditor AgreementsAgreements in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e) The Administrative Collateral Agent agrees that it shall not (and shall not be obliged to)deemed to have knowledge or notice of the occurrence of any Default or Event of Default, and shall not instruct unless a Trust Officer of the Collateral Agent toshall have received written notice from the Trustee or the Issuers referring to this Indenture, unless specifically requested to do so by the Required Lenders, take describing such Default or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement Event of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any Default and stating that such notice is a “notice of the Collateral. If at any time or times the Administrative default.” The Collateral Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments take such action with respect to the Obligations arising under, such Default or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms Event of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements Default as may be required requested by the Trustee in accordance with Article VI or the Holders of a majority in aggregate principal amount of the Notes (subject to negotiate the same to the Collateral Agentthis Section 12.9).
(f) The Administrative Collateral Agent is each Lender’s may resign at any time by notice to the Trustee and the Issuers, such resignation to be effective upon the acceptance of a successor agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possessionto its appointment as Collateral Agent. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify If the Collateral Agent thereofresigns under this Indenture, and, promptly upon the Collateral Agent’s request therefor Issuers shall deliver such Collateral appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent or otherwise deal with such Collateral (as stated in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any notice of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretoresignation), the Collateral Agent may act in any manner it may deem appropriateappoint, in its sole discretion given after consulting with the Collateral Agent’s own interest Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Issuers pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the Collateral and that notice of resignation) the Collateral Agent shall have no other duty or liability whatsoever be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the Administrative Agent or any Lender acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to any all the rights, powers and duties of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the retiring Collateral Agent) if it , and the term “Collateral Agent” shall have reasonable grounds for believing that repayment of mean such funds is not assured to it.
(i) The successor collateral agent, and the retiring Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powersAgent’s appointment, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except powers and duties as the Collateral Agent may agree in writing with shall be terminated. After the Borrower retiring Collateral Agent’s resignation hereunder, the provisions of this Section 12.9 (and money held in trust by the Collateral Agent need not be segregated from other funds except Section 7.7) shall continue to the extent required by law), (iii) the Collateral Agent may consult with counsel of inure to its selection benefit and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the retiring Collateral Agent shall not by reason of such resignation be construed deemed to impose duties be released from liability as to act.
(j) Neither any actions taken or omitted to be taken by it while it was the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionunder this Indenture.
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Collateral Agent. (a) The Administrative Agent and each of the Lenders Trustee is hereby designates and appoints appointed to act as the Collateral Agent as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementSecurity Documents, the Collateral Documents with such powers, rights and the Intercreditor Agreements and to exercise such powers and perform such duties obligations as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture and by the Security Documents. The Trustee may, from time to time, appoint another financial institution to act as Collateral Agent so long as such institution meets the requirements of Section 7.10. The Collateral Agent, acting in its capacity as such, shall have only such duties with respect to the Collateral Documents as are set forth in this Indenture and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision Security Documents to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, which the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantoris a party, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture or the Security Documents or otherwise shall exist on the part of the Collateral Agent.
(b) Subject to the appointment and acceptance of a successor Collateral Agent as provided in this Section 7.12(b), the Collateral Documents Agent (if other than the Trustee) may resign at any time by notifying the Trustee and the Intercreditor Agreements or otherwise exist against Company. Upon any such resignation, the Trustee shall have the right to appoint a successor Collateral Agent. If no successor shall have been so appointed by the Trustee and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Holders and the Trustee, appoint a successor Collateral Agent which shall meet the eligibility requirements of Section 7.10 and shall accept and comply in all material respects with the Security Documents, including, without limitation, the maintenance of an office and the Cash Collateral Account in the State of New York. Upon a successor’s acceptance of its appointment as Collateral Agent hereunder, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent hereunder and under the Security Documents, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder and under the Security Documents. If the Trustee shall be acting at any time as the Collateral Agent. Without limiting , then it will be deemed to have resigned as Collateral Agent upon its replacement as Trustee pursuant to Section 7.08, and the generality of successor Trustee shall select (or may act as) the foregoing sentencereplacement Collateral Agent.
(c) At all times when the Trustee is not itself the Collateral Agent, the use Company will deliver to the Trustee copies of the term “agent” in this Agreement with reference all Security Documents delivered to the Collateral Agent is not intended and copies of all documents delivered 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 otherwise provided in this Agreement, the Collateral Agent shall have pursuant to the Security Documents.
(d) The Collateral Agent may perform its duties under this Indenture and may use its sole discretion with respect the Security Documents to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly a party by or through receivers, agents, attorneys-in-fact and employees. The Collateral Agent may consult with and employ legal counsel, and shall be entitled to act or refrain from acting upon, and shall be fully authorized and protected in taking, or refraining from taking, action in reliance upon any advice or opinion given by legal counsel.
(e) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, consent, certificate, affidavit, letter, certification, statement, notice or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent or made by the proper Person, and upon the advice and statements of legal counsel (including without limitation, counsel to the Company or any Guarantor). The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document. The Collateral Agent shall have no liability for failing or refusing to take or assert any action under this AgreementIndenture or the Security Documents unless it shall first receive such advice, direction, instruction or concurrence of the Holders as is required hereunder; and the Collateral Documents Agent has the right to seek instructions from the Holders before acting or electing not to act under this Indenture and/or the Security Documents. The Collateral Agent shall in all cases have no liability in acting, or refraining from acting, under this Indenture and the Intercreditor AgreementsSecurity Documents in accordance with a direction or instruction from Holders representing the requisite principal amount of the outstanding Notes necessary to give such direction or instruction, including the exercise of remedies pursuant to Article VIII, and such direction or instruction and any action so taken or not taken failure to act pursuant thereto shall be deemed consented to by binding upon all the Administrative Agent and the LendersHolders.
(bf) None The Collateral Agent shall not be deemed to have knowledge of any Default or Event of Default unless a Responsible Officer of the Collateral Agent has received written notice from the Company or the Holders of a majority in principal amount of the outstanding Notes specifying the occurrence and nature thereof and stating that such notice is a “notice of default”. The Collateral Agent shall take such action with respect to any Default or Event of its Affiliates Default as shall be directed by Holders of a majority in principal amount of the outstanding Notes.
(ig) The Collateral Agent shall not be liable for any action taken or omitted to be taken by any of them under or it in connection with this Agreement Indenture or any Security Document or instrument referred to or provided for herein or therein, except to the transactions contemplated hereby (except for extent that any of the foregoing are found by a final, nonappealable decision of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) . The Collateral Agent does not assume any responsibility for any failure or delay in performance or any breach by the Company or any Guarantor of any obligations under or in connection with any this Indenture and the Security Documents. The Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) Agent shall not be responsible to the Holders or any other Person for any recitals, statements, information, representations or warranties contained in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, Security Documents or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this AgreementIndenture or any Security Document; the execution, validity, genuineness, effectiveness or enforceability of any Security Document; the Collateral Documents genuineness, enforceability, collectibility, value, sufficiency, location or the Intercreditor Agreementsexistence of any Collateral, or the validity, effectiveness, genuinenessenforceability, sufficiency, extent, perfection or priority of any Lien therein; the validity, enforceability or sufficiency collectibility of this Agreementany Obligations; the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of the Collateral Documents Company or the Intercreditor Agreements, any Guarantor; or for any failure of the Borrower, Company or any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent Indenture and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the LendersSecurity Documents. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent any Holder or any other Person to ascertain or inquire into the existence of any Default or Event of Default, the Lenders to assure that the Collateral exists observance or is owned performance by the Borrower Company or any Guarantor or is cared for, protected, or insured or has been encumbered, or that of any terms of this Indenture and the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may beSecurity Documents, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or satisfaction of any conditions precedent contained in any particular manner Security Documents. The Collateral Agent shall not be required to initiate or conduct any litigation or collection or other proceeding under any duty this Indenture and the Security Documents without the express written direction of care, disclosure, or fidelity, or to continue exercising, any Holders of a majority in principal amount of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the outstanding Notes. The Collateral Agent shall have no other duty or liability whatsoever the right at any time to seek instructions from the Holders of a majority in principal amount of the outstanding Notes with respect to the Administrative Agent or any Lender as to any administration of the foregoingSecurity Documents.
(h) No provision of this Agreement, Indenture or the Intercreditor Agreements or any Collateral Document Security Documents shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or in the exercise of any of its rights or powers unless the Collateral Agent shall have received indemnity satisfactory to take the Collateral Agent against potential costs and liabilities incurred by the Collateral Agent relating thereto. Notwithstanding anything to the contrary contained in this Indenture or omit any of the Security Documents, in the event the Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Collateral Agent shall not be required to commence any such action or exercise any such remedy if the Collateral Agent has determined that the Collateral Agent may incur personal liability as the result of the presence at, or release on or from, the Collateral, of any hazardous substances unless the Collateral Agent has received security or indemnity in an amount and in a form all satisfactory to the Collateral Agent in its sole discretion, protecting the Collateral Agent from all such liability. The Collateral Agent shall at any time be entitled to cease taking any action described above if it no longer reasonably deems any indemnity, security or undertaking from the Company or the Holders to be sufficient. Without limiting the foregoing, the Collateral Agent shall not be required to take any enforcement or other type of action hereunder under any account control agreement (including without limitation the sending of a notice of exclusive control or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of other similar action) unless the Collateral Agent) if it Agent shall have reasonable grounds for believing that repayment of such funds is not assured received indemnity satisfactory to itthe Collateral Agent against potential costs and liabilities incurred by the Collateral Agent relating thereto.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection parties hereto and the advice or opinion of such counsel as to matters of law shall be full Holders hereby agree and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to acknowledge that the Collateral Agent shall not assume, be responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs (including but not limited to, any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any environmental law as a result of this Indenture, the Security Documents or any actions authorized pursuant hereto or thereto; provided, however, the Collateral Agent may not be relieved from liabilities for its own gross negligence or willful misconduct as determined by a final order of a court of competent jurisdiction. Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture and the Security Documents, the Collateral Agent may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Agent in the Collateral, including without limitation the properties under the Mortgages, and that any such actions taken by the Collateral Agent to hold or obtain indicia of ownership shall not be construed to impose duties to actas or otherwise constitute any participation in the management of such Collateral, including without limitation the properties under the Mortgages, as those terms are defined in Section 101(20)(E) of the Comprehensive Environmental Response, Compensation, and Liability Act 42 U.S.C. §§ 9601 et seq., as amended.
(j) Neither This Article 7 and the Security Documents ( other than the Intercreditor Agreement) will be subject to the terms, limitations and conditions set forth in any Intercreditor Agreement, except as to such terms, limitations and conditions that relate to the rights, duties and immunities of the Trustee and the Collateral Agent nor the Administrative Agent Agent, which shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited subject to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionterms hereof.
Appears in 1 contract
Sources: Indenture (NFC Castings Inc)
Collateral Agent. (a) The Administrative Agent Each Buyer hereby (i) appoints Alto Opportunity Master Fund, SPC – Segregated Master Portfolio B, as the collateral agent hereunder and each of under the Lenders hereby designates and appoints the Collateral Agent as its agent under this Agreementother Security Documents (in such capacity, the “Collateral Documents Agent”), and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably (ii) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on its such Buyer’s behalf under in accordance with the provisions of this Agreement, the Collateral Documents terms hereof and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the thereof. The Collateral Agent shall not have, by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary reason hereof or of any of the provisions contained herein other than as expressly provided Security Documents, a fiduciary relationship in Section 12.03respect of any Buyer. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, Neither the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or any of its Affiliates officers, directors, employees or agents shall (i) be liable have any liability to any Buyer for any action taken or omitted to be taken by any of them under or in connection herewith or with this Agreement or any other Security Document except to the transactions contemplated hereby (except for extent caused by its own gross negligence or willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or under consequential, arising from or in connection with any the performance by such Collateral Document Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunderSecurity Documents. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and its Affiliates may make loans to, issue letters of credit for shall be fully protected in so acting or refraining from acting) upon the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent instructions of the Administrative Agent. The Administrative Agent Required Holders, and the Lenders acknowledge thatsuch instructions shall be binding upon all holders of Notes; provided, pursuant to such activitieshowever, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under required to take any obligation to provide such information to action which, in the Administrative Agent or reasonable opinion of the Lenders. Nothing herein shall impose or imply any obligation on the part of Collateral Agent, exposes the Collateral Agent to advance fundsliability or which is contrary to this Agreement or any other Transaction Document or applicable law. The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it.
(b) The Collateral Agent may resign from the performance of all its functions and duties hereunder and under the other Transaction Documents at any time by giving at least ten (10) Business Days’ prior written notice to the Company and each holder of Notes. Such resignation shall take effect upon the acceptance by a successor Collateral Agent of appointment pursuant to clauses (c) and (d) below or as otherwise provided below. If at any time the Collateral Agent does not (together with its affiliates) beneficially own any Notes, the Required Holders may, by written consent, remove the Collateral Agent from all its functions and duties hereunder and under the other Transaction Documents.
(c) Upon any such notice of resignation or removal, the Required Holders shall appoint a successor collateral agent. Upon the acceptance of any appointment as Collateral Agent hereunder by a successor agent, such successor collateral agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the collateral agent, and the Collateral Agent shall be discharged from its duties and obligations under this Agreement and the other Transaction Documents. After the Collateral Agent’s resignation or removal hereunder as the collateral agent, the provisions of this Section 4.11 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Collateral Agent under this Agreement and the other Transaction Documents.
(d) The If a successor Collateral Agent is authorized and directed to shall not have been so appointed within ten (i10) enter into Business Days of receipt of a written notice of resignation or removal, the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms Agent shall then appoint a successor collateral agent who shall serve as set forth in the Collateral Documents and Agent until such time, if any, as the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor AgreementsRequired Holders appoint a successor collateral agent as provided above.
(e) The Administrative In the event that a successor Collateral Agent agrees is appointed pursuant to the provisions of this Section 4.11 that it shall is not a Buyer or an affiliate of any Buyer (and shall not be obliged to), and shall not instruct or the Required Holders or the Collateral Agent to(or its successor), unless specifically requested as applicable, notify the Company that they or it wants to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any appoint such proceeds or payments received by the Administrative Agent from the a successor Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIIISection 4.11), the Administrative Agent shall Company and each Subsidiary thereof covenants and agrees to promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned take all actions reasonably requested by the Borrower Required Holders or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or its successor), as applicable, from time to time, to secure a successor Collateral Agent satisfactory to the Administrative requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all reasonable and customary fees and expenses of such successor Collateral Agent) , by having the Company and each Subsidiary thereof agree to expend or risk its own funds or otherwise incur indemnify any financial liability in the performance of any of its duties hereunder or thereunder or successor Collateral Agent pursuant to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case reasonable and customary terms and by each of the Company and each Subsidiary thereof executing a collateral agency agreement or similar agreement and/or any amendment to the Security Documents reasonably requested or required by the successor Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent and each Each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this AgreementIndenture, the Collateral Documents Intercreditor Agreement and the Intercreditor Agreements and the Administrative Agent other Security Documents, and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes and directs the Notes Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Documents Intercreditor Agreement and the Intercreditor Agreements other Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this AgreementIndenture, the Collateral Documents Intercreditor Agreement and the other Security Documents, and consents and agrees to the terms of the Intercreditor AgreementsAgreement and each other Security Document, together as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Notes Collateral Agent agrees to act as such powers as are reasonably incidental theretoon the express conditions contained in this Section 10.07. The provisions of this Section 12.11 10.07 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower nor Holders or any of the Company or the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the other Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein other than as expressly provided in Section 12.03and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Documents Intercreditor Agreement and the Intercreditor Agreementsother Security Documents, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the Intercreditor Agreement and the other Security Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or the Company or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Intercreditor Agreement or the other Security Documents and the Intercreditor Agreements or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Notes Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Intercreditor Agreement or the other Security Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made with due care.
(c) None of the Notes Collateral Agent or any of its Affiliates respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements Security Documents or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Company or any Guarantor or Affiliate of the Company or any Guarantor, or any officer Officer or Affiliate of any of the foregoingRelated Person thereof, contained in this Indenture, the Intercreditor Agreement or any Agreementthe other Security Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this AgreementIndenture, the Collateral Documents Intercreditor Agreement or the Intercreditor Agreementsother Security Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this AgreementIndenture, the Collateral Documents Intercreditor Agreement or the Intercreditor Agreementsother Security Documents, or for any failure of the Borrower, Company or any Guarantor or any other party to this AgreementIndenture, the Collateral Documents Intercreditor Agreement or the Intercreditor Agreements other Security Documents to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its Affiliates respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this AgreementIndenture, the Collateral Documents Intercreditor Agreement or the Intercreditor Agreements other Security Documents or to inspect the properties, books, or records of the Borrower, Company or any Guarantor or any Guarantor’s of their respective Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Notes Collateral Agent is authorized shall be entitled to rely, and directed shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or email) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (i) enter including, without limitation, counsel to the Company or any Guarantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the Collateral Documentsfacts or matters stated in any resolution, (ii) enter into the Intercreditor Agreementscertificate, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreementsstatement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document.
(e) The Administrative Notes Collateral Agent agrees that it shall not (and shall not be obliged to)deemed to have knowledge or notice of the occurrence of any Default or Event of Default, and shall not instruct unless a Responsible Officer of the Notes Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments have received by the Administrative Agent written notice from the Collateral Agent pursuant Trustee or the Company referring to the terms this Indenture, describing such Default or Event of this Agreement, or (ii) payments from the Collateral Agent in excess Default and stating that such notice is a “notice of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agentdefault.”
(f) The Administrative Notes Collateral Agent may resign at any time by notice to the Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture, the Company shall appoint a successor collateral agent. If no successor collateral agent is each Lender’s agent for appointed prior to the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 intended effective date of the Uniform Commercial Code can be perfected only by possession. Should resignation of the Administrative Notes Collateral Agent obtain possession (as stated in the notice of any such Collateral, upon request from the Borrowerresignation), the Administrative Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall notify be entitled to petition a court of competent jurisdiction, at the expense of the Company, to appoint a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Notes Collateral Agent thereofAgent, andand the term “Notes Collateral Agent” shall mean such successor collateral agent, promptly upon and the retiring Notes Collateral Agent’s request therefor shall deliver such Collateral to appointment, powers and duties as the Notes Collateral Agent or otherwise deal with such Collateral in accordance with shall be terminated. After the retiring Notes Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretoresignation hereunder, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision provisions of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent Section 10.07 (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (iand Section 7.07) shall not be liable for any action it takes or omits continue to take in good faith which it reasonably believes inure to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection benefit and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the retiring Notes Collateral Agent shall not by reason of such resignation be construed deemed to impose duties be released from liability as to act.
(j) Neither any actions taken or omitted to be taken by it while it was the Notes Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionunder this Indenture.
Appears in 1 contract
Sources: Indenture (B&G Foods, Inc.)
Collateral Agent. (a) The Administrative Agent Guarantors and each of the Lenders Holders by acceptance of any Notes and the Note Guarantees hereby designates and appoints U.S. Bank Trust Company, National Association as the Collateral Agent as its agent under this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreements, and the Administrative Agent Company and each of the Lenders Holders by acceptance of such Notes hereby consents to and approves the terms of and irrevocably authorizes and directs the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Security Documents and the Intercreditor AgreementsAgreements and consents and agrees to the terms of the Intercreditor Agreements and each Security Document, together as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with such powers as are reasonably incidental theretotheir respective terms. The Collateral Agent agrees to act as such on the express conditions contained in this Section 1407. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Section 12.11 are solely for Indenture, the benefit of Security Documents and the Notes Intercreditor Agreements and the exercise by the Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained or remedies set forth herein other than as expressly provided in Section 12.03and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth in this Indenture, the Security Documents and the Intercreditor Agreements to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder, the Company or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this AgreementFor the purpose of the Security Documents governed by Belgian law, each Grantor and Holder appoints the Collateral Agent shall have and may use as its sole discretion representative in accordance with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions Article 3 of Book III, Title XVII of the Belgian Civil Code, which the Collateral Agent appointment is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lendershereby accepted.
(b) The Collateral Agent may perform any of its duties under this Indenture, the Security Documents, and the Intercreditor Agreements by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel of its selection concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the negligence or misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and with due care.
(c) None of the Collateral Agent or nor any of its Affiliates respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct, as finally adjudicated by a court of competent jurisdiction in a final non-appealable decision) or under or in connection with any Collateral Document Security Document, or the Intercreditor Agreements Agreements, or the transactions contemplated thereby (except for its own gross negligence or willful misconduct, as finally adjudicated by a court of competent jurisdiction in a final non-appealable decision), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Company or any other Guarantor or Affiliate of any Guarantor, or any officer Officer or Affiliate of any of the foregoingRelated Person thereof, contained in this Indenture, the Security Documents, or any Agreementthe Intercreditor Agreements, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this AgreementIndenture, the Collateral Documents Security Documents, or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this AgreementIndenture, the Collateral Documents or Security Documents, the Intercreditor Agreements, or for any failure of the BorrowerCompany, any Guarantor or any other party to this AgreementIndenture, the Collateral Documents Security Documents, or the Intercreditor Agreements Agreements, to perform its obligations hereunder or thereunder. None of the Collateral Agent or nor any of its Affiliates respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this AgreementIndenture, the Collateral Documents Security Documents, or the Intercreditor Agreements Agreements, or to inspect the properties, books, or records of the BorrowerCompany, any Guarantor or any Guarantor’s of their Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized shall be entitled to rely, and directed shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document (including those by e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (i) enter including, without limitation, counsel to the Company or any Guarantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral DocumentsAgent shall be fully justified in failing or refusing to take any action under this Indenture, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Security Documents and the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and (iv) perform all liability and observe its obligations expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Security Documents and the Intercreditor AgreementsAgreements in accordance with a request, direction, instruction or consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e) The Administrative Collateral Agent agrees that it shall not (and shall not be obliged to)deemed to have knowledge or notice of the occurrence of any Default or Event of Default, and shall not instruct unless a Trust Officer of the Collateral Agent toshall have received written notice from the Trustee or the Company referring to this Indenture, unless specifically requested to do so by describing such Default or Event of Default and stating that such notice is a “notice of default,” and such notice references the Required LendersNotes, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including Indenture and the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the CollateralCompany. If at any time or times the Administrative The Collateral Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments take such action with respect to the Obligations arising under, such Default or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms Event of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements Default as may be required requested by the Trustee in accordance with Article VI or the Holders of a majority in aggregate principal amount of the Notes (subject to negotiate the same to the Collateral Agentthis Section 1407).
(f) The Administrative Collateral Agent is each Lender’s may resign at any time by 30 days’ written notice to the Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possessionto its appointment as Collateral Agent. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify If the Collateral Agent thereofresigns under this Indenture, and, promptly upon the Collateral Agent’s request therefor Company shall deliver such Collateral appoint a successor collateral agent. If no successor collateral agent is appointed prior to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any intended effective date of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest resignation of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability as stated in the performance notice of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action resignation), the Trustee, at the request or written direction of Lenders (or the Administrative Agent in the case Holders of a majority of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed aggregate principal amount of the likelihood thereof and regardless of the form of action.Notes then
Appears in 1 contract
Sources: Indenture (Xerox Corp)
Collateral Agent. (a) The Administrative Collateral Agent and each has been appointed to act as Collateral Agent hereunder by the Holders and, by their acceptance of the Lenders hereby designates benefits hereof, the other Secured Parties. The Collateral Agent shall be obligated, and appoints shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement, the Note Purchase Agreement and the Intercreditor Agreement. In furtherance of the foregoing provisions of this Section, each Secured Party other than the Collateral Agent, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent, subject to the terms of the Intercreditor Agreement, for the benefit of Secured Parties in accordance with the terms of this Section. The Collateral Agent may resign at any time by giving thirty (30) days’ prior written notice thereof to the Holders and the Grantors, and the Collateral Agent may be removed at any time with or without cause by an instrument or concurrent instruments in writing delivered to the Grantors and Collateral Agent signed by the Requisite Holders. Upon any such notice of resignation or any such removal, the Requisite Holders shall have the right (subject to the consent of the Administrative Co-Issuer (not to be unreasonably withheld) so long as its agent no Event of Default has occurred and be continuing or would have been continuing but for a forbearance agreement or waiver that is not permanent being in effect), upon five (5) Business Days’ notice to the Note Agent, to appoint a successor Collateral Agent. Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, that successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Collateral Agent under this Agreement, and the retiring or removed Collateral Agent under this Agreement shall promptly (i) transfer to such successor Collateral Agent all sums, Securities and other items of Collateral held hereunder, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Collateral Agent under this Agreement, and (ii) execute and deliver to such successor Collateral Agent or otherwise authorize the filing of such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor Collateral Agent of the security interests created hereunder, whereupon such retiring or removed Collateral Agent shall be discharged from its duties and obligations under this Agreement. After any retiring or removed Collateral Agent’s resignation or removal hereunder as the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under Agent, the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and Agreement shall inure to exercise such powers and perform such duties its benefit as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them it under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by while it was the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliateshereunder.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 1 contract
Sources: Third Lien Pledge and Security Agreement (Vonage Holdings Corp)
Collateral Agent. (a) The Administrative Agent Pubco and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Agreement, Indenture and the Collateral Documents Documents, and the Intercreditor Agreements and the Administrative Agent Pubco and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, and the Collateral Documents and the Intercreditor Agreements Documents, and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, Indenture and the Collateral Documents Documents, and consents and agrees to the Intercreditor Agreementsterms of each Collateral Document, together as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with such powers as are reasonably incidental theretotheir respective terms. The Collateral Agent agrees to act as such on the express conditions contained in this Section 13.7. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Section 12.11 are solely for Indenture and the benefit of Collateral Documents, and the Notes exercise by the Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained or remedies set forth herein other than as expressly provided in Section 12.03and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture and the Collateral Documents, the duties of the Collateral Documents Agent shall be ministerial and the Intercreditor Agreementsadministrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the Collateral Documents, to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, and the Collateral Documents and the Intercreditor Agreements Documents, or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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.
(b) The Collateral Agent may perform any of its duties under this Indenture, and the Collateral Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. Except The Collateral Agent shall not be responsible for the negligence or misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as expressly otherwise provided long as such selection was made in good faith and with due care.
(c) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to Pubco or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under this AgreementIndenture or the Collateral Documents unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Collateral Document in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(d) [Reserved]
(e) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Trust Officer of the Collateral Agent shall have received written notice from the Trustee or Pubco referring to this Indenture, describing such Default or Event of Default and may use its sole discretion stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to exercising such Default or refraining from exercising any discretionary rights Event of Default as may be requested by the Trustee in accordance with Article VI or taking the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.7).
(f) [Reserved].
(g) U.S. Bank Trust Company, National Association shall initially act as Collateral Agent and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or refraining from taking any actions which in the Collateral Documents, neither the Collateral Agent is expressly entitled nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take or assert under this Agreement, any other action whatsoever with regard to the Collateral Documents and the Intercreditor Agreements, including or any part thereof. The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of remedies pursuant to Article VIIIsuch powers, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of neither the Collateral Agent or nor any of its Affiliates officers, directors, employees or agents shall (i) be liable responsible for any action taken act or omitted failure to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (act hereunder, except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(dh) The Collateral Agent is authorized and directed to (i) enter into the Collateral DocumentsDocuments to which it is party, whether executed on or after the Issue Date, (ii) enter into make the Intercreditor Agreements, (iii) representations of the Holders set forth in the Collateral Documents bind the Lenders Holders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements Documents, and (iviii) perform and observe its obligations under the Collateral Documents and the Intercreditor AgreementsDocuments.
(ei) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this AgreementIndenture, except for any such proceeds or payments received by the Administrative Agent Trustee from the Collateral Agent pursuant to the terms of this AgreementIndenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent Trustee pursuant to Article VIIIVI, the Administrative Agent Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral AgentAgent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Collateral Documents.
(fj) The Administrative Collateral Agent is each LenderHolder’s agent for the purpose of perfecting the LendersHolders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code Code, can be perfected only by possessionpossession or control. Should the Administrative Agent Trustee obtain possession or control of any such Collateral, upon request from the BorrowerPubco, the Administrative Agent Trustee shall notify the Collateral Agent thereof, and, thereof and promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(gk) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent Trustee or any of the Lenders Holders to assure that the Collateral exists or is owned by the Borrower or any Guarantor Grantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any GuarantorGrantor’s property constituting collateral Collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this AgreementIndenture, any Collateral Document or other than pursuant to the Intercreditor Agreements, it being understood and agreed that in respect instructions of the Collateral, Holders of a majority in aggregate principal amount of the Notes or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest as otherwise provided in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoingDocuments.
(hl) Reserved.
(m) No provision of this Agreement, the Intercreditor Agreements Indenture or any Collateral Document shall require the Collateral Agent (or the Administrative AgentTrustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders Holders (or the Administrative Agent Trustee in the case of the Collateral Agent) if unless it shall have reasonable grounds for believing received indemnity satisfactory to the Collateral Agent and the Trustee against potential costs and liabilities incurred by the Collateral Agent relating thereto. Notwithstanding anything to the contrary contained in this Indenture or the Collateral Documents, in the event the Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the mortgages or take any such other action if the Collateral Agent has determined that repayment the Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such funds is not assured property, of any hazardous substances. The Collateral Agent shall at any time be entitled to itcease taking any action described in this clause (m) if it no longer reasonably deems any indemnity, security or undertaking from Pubco or the Holders to be sufficient.
(in) The Collateral Agent (i) shall not be liable for any action it takes taken or omits to take in good faith which it reasonably believes omitted to be authorized taken by it in connection with this Indenture and the Collateral Documents or within its rights instrument referred to herein or powerstherein, or for except to the extent that any error of judgment made in good faith the foregoing are found by a Responsible Officerfinal, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent factsnon-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower P▇▇▇▇ (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), ) and (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(jo) Neither the Collateral Agent nor the Administrative Agent Trustee shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent Trustee shall be liable for any indirect, special special, punitive, incidental or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
(p) The Collateral Agent does not assume any responsibility for any failure or delay in performance or any breach by Pubco or any other Grantor under this Indenture and the Collateral Documents. The Collateral Agent shall not be responsible to the Holders or any other Person for any recitals, statements, information, representations or warranties contained in this Indenture, the Collateral Documents or in any certificate, report, statement, or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Indenture or any Collateral Document; the execution, validity, genuineness, effectiveness or enforceability of the Collateral Documents of any other party thereto; the genuineness, enforceability, collectability, value, sufficiency, location or existence of any Collateral, or the validity, effectiveness, enforceability, sufficiency, extent, perfection or priority of any Lien therein; the validity, enforceability or collectability of any Obligations; the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any obligor; or for any failure of any obligor to perform its Obligations under this Indenture and the Collateral Documents. The Collateral Agent shall have no obligation to any Holder or any other Person to ascertain or inquire into the existence of any Default or Event of Default, the observance or performance by any obligor of any terms of this Indenture and the Collateral Documents, or the satisfaction of any conditions precedent contained in this Indenture and any Collateral Documents. The Collateral Agent shall not be required to initiate or conduct any litigation or collection or other proceeding under this Indenture and the Collateral Documents unless expressly set forth hereunder or thereunder. The Collateral Agent shall have the right at any time to seek instructions from the Holders with respect to the administration of this Indenture and the Collateral Documents.
(q) The parties hereto and the Holders hereby agree and acknowledge that neither the Collateral Agent nor the Trustee shall assume, be responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs (including but not limited to, any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any environmental law as a result of this Indenture and the Collateral Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture and the Collateral Documents, the Collateral Agent may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Agent in the Collateral and that any such actions taken by the Collateral Agent shall not be construed as or otherwise constitute any participation in the management of such Collateral. In the event that the Collateral Agent or the Trustee is required to acquire title to an asset for any reason, or take any managerial action o
Appears in 1 contract
Sources: Indenture (ProCap Financial, Inc.)
Collateral Agent. (a) The Administrative In addition to the rights, protections and indemnities set forth herein, the Collateral Agent shall have all the rights and each protections provided in the Security Documents.
(b) Each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this AgreementFirst Lien Indenture, the Collateral Security Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementFirst Lien Indenture, the Collateral Security Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementFirst Lien Indenture, the Collateral Security Documents and the Intercreditor Agreements, together and consents and agrees to the terms of the Intercreditor Agreements and each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms.
(c) Each of the Holders by acceptance of the Notes hereby directs the Trustee to so designate and appoint the Collateral Agent as its agent under this First Lien Indenture and the Security Documents and the Trustee hereby so designates and appoints the Collateral Agent. The Collateral Agent agrees to act as such powers as are reasonably incidental theretoon the express conditions contained in this Section 12.03. The provisions of this Section 12.11 12.03 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the LendersHolders, the Borrower Company, the Co-Obligor nor any of the Guarantors shall have any rights as a third third-party beneficiary of any of the provisions contained herein other than as expressly provided hereunder. Each Holder agrees that any action taken by the Collateral Agent in Section 12.03accordance with the provision of this First Lien Indenture, the Intercreditor Agreements and the Security Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementFirst Lien Indenture, the Collateral Security Documents and the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in nature and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the Security Documents and the Intercreditor Agreements to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder, the Company, the Co-Obligor or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementFirst Lien Indenture, the Collateral Security Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement First Lien Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead.
(d) The Collateral Agent may perform any of its duties under this First Lien Indenture, the Security Documents or the Intercreditor Agreements by or through receivers, agents, employees, attorneys-in-fact or through its related Persons and shall be entitled to advice of counsel concerning all matters pertaining to such term is used merely as a matter of market customduties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel, including counsel that is intended an employee of or counsel to create or reflect only an administrative relationship between independent contracting parties. Except as expressly otherwise provided in this Agreementthe Company, the Co-Obligor or any Guarantor. The Collateral Agent shall have and may use its sole discretion with respect to exercising not be responsible for any receiver, agent, employee, attorney-in-fact or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lendersrelated Person that it selects as long as such selection was made in good faith.
(be) None of the Collateral Agent or any of its Affiliates respective related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement First Lien Indenture, the Notes or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) misconduct as determined by a court of competent jurisdiction in a final non-appealable order), or under or in connection with any Collateral Document the Security Documents or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconductmisconduct as determined by a court of competent jurisdiction in a final non-appealable order), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.or
Appears in 1 contract
Sources: First Lien Senior Secured Pik Notes Indenture (WeWork Inc.)
Collateral Agent. (a) The Administrative Agent Guarantors and each of the Lenders Holders by acceptance of any Notes and the Note Guarantees hereby designates and appoints U.S. Bank Trust Company, National Association as the Collateral Agent as its agent under this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreements, and the Administrative Agent Company and each of the Lenders Holders by acceptance of such Notes hereby consents to and approves the terms of and irrevocably authorizes and directs the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Security Documents and the Intercreditor AgreementsAgreements and consents and agrees to the terms of the Intercreditor Agreements and each Security Document, together as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with such powers as are reasonably incidental theretotheir respective terms. The Collateral Agent agrees to act as such on the express conditions contained in this Section 1407. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Section 12.11 are solely for Indenture, the benefit of Security Documents and the Notes Intercreditor Agreements and the exercise by the Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained or remedies set forth herein other than as expressly provided in Section 12.03and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth in this Indenture, the Security Documents and the Intercreditor Agreements to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder, the Company or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this AgreementFor the purpose of the Security Documents governed by Belgian law, each Guarantor and Holder appoints the Collateral Agent shall have and may use as its sole discretion representative in accordance with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions Article 3 of Book III, Title XVII of the Belgian Civil Code, which the Collateral Agent appointment is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lendershereby accepted.
(b) The Collateral Agent may perform any of its duties under this Indenture, the Security Documents, and the Intercreditor Agreements by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel of its selection concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the negligence or misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and with due care.
(c) None of the Collateral Agent or nor any of its Affiliates respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct, as finally adjudicated by a court of competent jurisdiction in a final non-appealable decision) or under or in connection with any Collateral Document Security Document, or the Intercreditor Agreements Agreements, or the transactions contemplated thereby (except for its own gross negligence or willful misconduct, as finally adjudicated by a court of competent jurisdiction in a final non-appealable decision), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Company or any other Guarantor or Affiliate of any Guarantor, or any officer Officer or Affiliate of any of the foregoingRelated Person thereof, contained in this Indenture, the Security Documents, or any Agreementthe Intercreditor Agreements, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this AgreementIndenture, the Collateral Documents Security Documents, or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this AgreementIndenture, the Collateral Documents or Security Documents, the Intercreditor Agreements, or for any failure of the BorrowerCompany, any Guarantor or any other party to this AgreementIndenture, the Collateral Documents Security Documents, or the Intercreditor Agreements Agreements, to perform its obligations hereunder or thereunder. None of the Collateral Agent or nor any of its Affiliates respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this AgreementIndenture, the Collateral Documents Security Documents, or the Intercreditor Agreements Agreements, or to inspect the properties, books, or records of the BorrowerCompany, any Guarantor or any Guarantor’s of their Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized shall be entitled to rely, and directed shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document (including those by e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (i) enter including, without limitation, counsel to the Company or any Guarantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral DocumentsAgent shall be fully justified in failing or refusing to take any action under this Indenture, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Security Documents and the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and (iv) perform all liability and observe its obligations expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Security Documents and the Intercreditor AgreementsAgreements in accordance with a request, direction, instruction or consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e) The Administrative Collateral Agent agrees that it shall not (and shall not be obliged to)deemed to have knowledge or notice of the occurrence of any Default or Event of Default, and shall not instruct unless a Trust Officer of the Collateral Agent toshall have received written notice from the Trustee or the Company referring to this Indenture, unless specifically requested to do so by describing such Default or Event of Default and stating that such notice is a “notice of default,” and such notice references the Required LendersNotes, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including Indenture and the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the CollateralCompany. If at any time or times the Administrative The Collateral Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments take such action with respect to the Obligations arising under, such Default or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms Event of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements Default as may be required requested by the Trustee in accordance with Article VI or the Holders of a majority in aggregate principal amount of the Notes (subject to negotiate the same to the Collateral Agentthis Section 1407).
(f) The Administrative Collateral Agent is each Lender’s may resign at any time by 30 days’ written notice to the Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possessionto its appointment as Collateral Agent. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify If the Collateral Agent thereofresigns under this Indenture, and, promptly upon the Collateral Agent’s request therefor Company shall deliver such Collateral appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent or otherwise deal with such Collateral (as stated in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to notice of resignation), the Administrative Agent or any Trustee, at the written direction of the Lenders to assure that Holders of a majority of the Collateral exists or is owned by aggregate principal amount of the Borrower or any Guarantor or is cared forNotes then outstanding, protectedmay appoint a successor collateral agent, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest consent of the Collateral Documents has been properly Company (which consent shall not be unreasonably withheld and completely listed or delivered, as which shall not be required during a continuing Event of Default). If no successor collateral agent is appointed and consented to by the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available Company pursuant to the Collateral Agent pursuant to this Agreement, any Collateral Document or preceding sentence within thirty (30) days after the Intercreditor Agreements, it being understood and agreed that in respect intended effective date of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest resignation (as stated in the Collateral and that notice of resignation) the Collateral Agent shall have no other duty or liability whatsoever be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the Administrative Agent or any Lender acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to any all the rights, powers and duties of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the retiring Collateral Agent) if it , and the term “Collateral Agent” shall have reasonable grounds for believing that repayment of mean such funds is not assured to it.
(i) The successor collateral agent, and the retiring Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powersAgent’s appointment, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except powers and duties as the Collateral Agent may agree in writing with shall be terminated. After the Borrower retiring Collateral Agent’s resignation hereunder, the provisions of this Section 1407 (and money held in trust by the Collateral Agent need not be segregated from other funds except Section 707 hereof) shall continue to the extent required by law), (iii) the Collateral Agent may consult with counsel of inure to its selection benefit and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the retiring Collateral Agent shall not by reason of such resignation be construed deemed to impose duties be released from liability as to act.
(j) Neither any actions taken or omitted to be taken by it while it was the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionunder this Indenture.
Appears in 1 contract
Sources: Indenture (Xerox Corp)
Collateral Agent. (a) The Administrative Agent Issuer and each of the Lenders Holders by acceptance of the Notes, and each beneficial owner of an interest in a Note, hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent other Collateral Documents and the Issuer directs and authorizes and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, Indenture and the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Documents Intercreditor Agreements and the other Collateral Documents, and consents and agrees to the terms of the Intercreditor AgreementsAgreements and each Collateral Document, together as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms or the terms of this Indenture. The Collateral Agent agrees to act as such powers as are reasonably incidental theretoon the express conditions contained in this Section 1508. The provisions of this Section 12.11 1508 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower Holders nor any of the Guarantors Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provision of this Indenture, the Intercreditor Agreements and/or the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein other than as expressly provided in Section 12.03and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Documents Intercreditor Agreements and the Intercreditor Agreementsother Collateral Documents, the duties of the Collateral Agent shall be ministerial and administrative in nature, and Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative Agent, any Lender Trustee or any GuarantorHolder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements and the other Collateral Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, Without limiting the generality of the foregoing the Collateral Agent shall have hereby undertakes, and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which each of the Holders by acceptance of the Notes and each beneficial owner of an interest in a Note authorize the Collateral Agent is expressly entitled to take to:
(i) hold and administer, or assert under this Agreementas the case may be authorize and appoint, on behalf of and for the Collateral Documents benefit of the Holders and beneficial owners of an interest in the Notes, any other person in accordance with the Intercreditor Agreements, any non-accessory Collateral (nicht-akzessorische Sicherheit) governed by the laws of the Federal Republic of Germany as fiduciary (treuhänderisch) in its own name but for the benefit of the Holders and beneficial owners of an interest in the Notes;
(ii) hold and administer any accessory Collateral (akzessorische Sicherheit) governed by the laws of the Federal Republic of Germany as direct representative (direkter Stellvertreter) in the name and on behalf of the Holders and beneficial owners of an interest in the Notes;
(iii) accept, enter into and execute, as its direct representative (direkter Stellvertreter) any pledge or other creation of any accessory security right (akzessorische Sicherheit) granted in favor of any Holder under German law in connection with the Notes and to agree to and execute in its name and on its behalf as its direct representative (direkter Stellvertreter) any amendments, confirmations and/or alterations to any Collateral Document governed by German law which creates a pledge or any other accessory security right (akzessorische Sicherheit) including the exercise release or confirmation of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lendersrelease of such Collateral.
(b) None The Collateral Agent may perform any of its duties under this Indenture, the Intercreditor Agreements or the other Collateral Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates, (a “Related Person”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) Neither the Collateral Agent or nor any of its Affiliates Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture, the Intercreditor Agreements or the other transactions contemplated hereby (except for its own gross negligence or willful misconductmisconduct as determined by a final order of a court of competent jurisdiction) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconductmisconduct as determined by a final order of a court of competent jurisdiction), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Issuer or any Guarantor, or any officer other Grantor or Affiliate of any of the foregoingGrantor, or any Officer or Related Person thereof, contained in this Indenture, or any Agreementother Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this AgreementIndenture, the Collateral Documents Intercreditor Agreements or the Intercreditor Agreementsother Collateral Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this AgreementIndenture, the Collateral Documents Intercreditor Agreements or the Intercreditor Agreementsother Collateral Documents, or for any failure of the Borrower, any Guarantor Grantor or any other party to this Agreement, Indenture or the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of Neither the Collateral Agent or nor any of its Affiliates Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements or the other Collateral Documents or to inspect the properties, books, or records of the Borrower, any Guarantor Grantor or any GuarantorGrantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized shall be entitled (in the absence of gross negligence or willful misconduct) to rely, and directed shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (i) enter including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and/or other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. Unless otherwise expressly required hereunder or pursuant to any Collateral DocumentsDocument, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Intercreditor Agreements and (iv) perform and observe its obligations under or the other Collateral Documents unless it shall first receive such written advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected from claims by any Holders in acting, or in refraining from acting, under this Indenture, the Intercreditor AgreementsAgreements or the other Collateral Documents in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e) The Administrative Collateral Agent agrees that it shall not (and shall not be obliged to)deemed to have knowledge or notice of the occurrence of any Default or Event of Default, and shall not instruct unless a Responsible Officer of the Collateral Agent toshall have received written notice from the Holders or the Issuer referring to this Indenture, unless specifically requested to do so by the Required Lenders, take describing such Default or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement Event of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any Default and stating that such notice is a “notice of the Collateral. If at any time or times the Administrative default.” The Collateral Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments take such action with respect to the Obligations arising under, such Default or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms Event of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements Default as may be required requested by the Trustee in accordance with Article Six or the Holders of a majority in aggregate principal amount of the Notes (subject to negotiate the same to the Collateral Agentthis Section 1508).
(f) The Administrative Collateral Agent is each Lender’s may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possessionto its appointment as Collateral Agent. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify If the Collateral Agent thereofresigns under this Indenture, and, promptly upon the Collateral Agent’s request therefor Issuer shall deliver such Collateral appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent or otherwise deal with such Collateral (as stated in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent notice of resignation), the Issuer shall have appoint a successor collateral agent. If no obligation whatsoever successor collateral agent is appointed by the Issuer pursuant to the Administrative Agent or any preceding sentence within thirty (30) days after the intended effective date of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, resignation (as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest stated in the Collateral and that notice of resignation) the Collateral Agent shall have no other duty or liability whatsoever be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the Administrative Agent or any Lender acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to any all the rights, powers and duties of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the retiring Collateral Agent) if it , and the term “Collateral Agent” shall have reasonable grounds for believing that repayment of mean such funds is not assured to it.
(i) The successor collateral agent, and the retiring Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powersAgent’s appointment, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except powers and duties as the Collateral Agent may agree in writing with shall be terminated. After the Borrower retiring Collateral Agent’s resignation hereunder, the provisions of this Section 1508 (and money held in trust by the Collateral Agent need not be segregated from other funds except Section 607) shall continue to the extent required by law), (iii) the Collateral Agent may consult with counsel of inure to its selection benefit and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the retiring Collateral Agent shall not by reason of such resignation be construed deemed to impose duties be released from liability as to act.
(j) Neither any actions taken or omitted to be taken by it while it was the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its controlunder this Indenture. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither If the Collateral Agent nor consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the Administrative Agent shall successor corporation without any further act will be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionsuccessor Collateral Agent.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Securities hereby designates and appoints acknowledge the Company’s appointment of the Collateral Agent as its the Trustee’s collateral agent under this Agreement, Indenture and the Collateral Security Documents and the Intercreditor Agreements and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Securities hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents Indenture and the Intercreditor AgreementsSecurity Documents, together with such powers as are reasonably incidental thereto. The Collateral Agent agrees to act as such on the express conditions contained in this Section 11.07. The provisions of this Section 12.11 11.07 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, Holders nor the Borrower nor Company or any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0311.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents Indenture and the Intercreditor AgreementsSecurity Documents, the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein or in the Security Documents, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or the Company or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral Agent is shall not intended be construed 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 otherwise provided in this AgreementIndenture and the Security Documents, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents Indenture and the Intercreditor AgreementsSecurity Documents, including the exercise of remedies pursuant to Article VIIISix, and any action so taken or not taken shall be deemed consented to by the Administrative Agent Trustee and the LendersHolders.
(b) The Collateral Agent may execute any of its duties under this Indenture and the Security Documents by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent, employee or attorney-in-fact that it selects as long as such selection was made without negligence or willful misconduct.
(c) None of the Collateral Agent or any of its Affiliates agents or employees shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Security Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Company or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this Indenture or any Agreementindenture, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this AgreementIndenture or any other indenture, the Collateral Documents or the Intercreditor AgreementsSecurity Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents Indenture or any other indenture or the Intercreditor AgreementsSecurity Documents, or for any failure of the Borrower, Company or any Guarantor or any other party to this Agreement, the Collateral Documents Indenture or the Intercreditor Agreements Security Documents to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates agents or employees shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement, the Collateral Documents Indenture or any other indenture or the Intercreditor Agreements Security Documents or to inspect the properties, books, books or records of the Borrower, any Guarantor Company or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee or the Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article Six (subject to this Section 11.07); provided, however, that unless and until the Collateral Agent has received any such request, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.
(e) A resignation or removal of the Collateral Agent and appointment of a successor Collateral Agent shall become effective only upon the successor Collateral Agent’s acceptance of appointment as provided in this Section 11.07(e). The Collateral Agent may resign in writing at any time by so notifying the Company, the Trustee and each trustee, agent or representative of holders of Permitted Additional Pari Passu Obligations at least 30 days prior to the proposed date of resignation. The Company may remove the Collateral Agent if: (i) the Collateral Agent (x) fails to meet the requirements for being a Trustee under Section 7.10 (prior to the discharge or defeasance of this Indenture) and (y) following the discharge or defeasance of this Indenture, fails to meet the requirements for being the trustee, agent or representative of holders of any extant Permitted Additional Pari Passu Obligations; (ii) the Collateral Agent is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Collateral Agent under any Bankruptcy Law; (iii) a custodian or public officer takes charge of the Collateral Agent or its property; or (iv) the Collateral Agent becomes incapable of acting. If the Collateral Agent resigns or is removed or if a vacancy exists in the office of Collateral Agent for any reason, the Company shall promptly appoint a successor Collateral Agent which complies with the eligibility requirements contained in this Indenture and each indenture, credit agreement or other agreements which any Permitted Additional Pari Passu Obligations (other than Additional Securities) are incurred. If a successor Collateral Agent does not take office within 10 days after the retiring Collateral Agent resigns or is removed, the retiring Collateral Agent, the Company or the holders of at least 10% in principal amount of the then outstanding principal amount of (x) the Securities (other than any Additional Securities except to the extent constituting Permitted Additional Pari Passu Obligations) and (y) Permitted Additional Pari Passu Obligations (to the extent the trustee, agent or representative of holders of such Permitted Additional Pari Passu Obligations executed a joinder to the Security Agreement) may petition any court of competent jurisdiction for the appointment of a successor Collateral Agent. A successor Collateral Agent shall deliver a written acceptance of its appointment to the retiring Collateral Agent and to the Company. Thereupon, the resignation or removal of the retiring Collateral Agent shall become effective, and the successor Collateral Agent shall have all the rights, powers and the duties of the Collateral Agent under this Indenture and the Security Documents. The successor Collateral Agent shall mail a notice of its succession to the Trustee and each trustee, agent or representative of holders of Permitted Additional Pari Passu Obligations. The retiring Collateral Agent shall promptly transfer all property held by it as Collateral Agent to the successor Collateral Agent, provided that all sums owing to the Collateral Agent hereunder have been paid. Notwithstanding replacement of the Collateral Agent pursuant to this Section 11.07(e), the Company’s obligations under this Section 11.07 and Section 11.12 shall continue for the benefit of the retiring Collateral Agent.
(f) Except as otherwise explicitly provided herein or in the Security Documents, neither the Collateral Agent nor any of its officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. 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.
(g) The Trustee is authorized and directed by the Holders and the Holders by acquiring the Securities and deemed to have authorized the Trustee, as applicable, to (i) enter into the Collateral Security Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders Holders on the terms as set forth in the Collateral Security Documents and the Intercreditor Agreements and (iviii) perform and observe its obligations under the Security Documents. The Collateral Agent is authorize and directed by the Trustee and the Holders and the Holders by acquiring the Securities and deemed to have authorized the Collateral Agent to (i) enter into the Security Documents, (ii) bind the Trustee and the Holders on the terms as set forth in the Security Documents and (iii) perform and observe its obligations under the Intercreditor AgreementsSecurity Documents.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(gh) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent Trustee or any of the Lenders Holders to assure that the Collateral exists or is owned by the Borrower or any Guarantor Company and the Guarantors or is cared for, protected, protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or of the Borrower or any GuarantorGrantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, disclosure or fidelity, or to continue exercising, any of the rights, authorities, authorities and powers granted or available to the Collateral Agent pursuant to this Agreement, Indenture or any Collateral Document or the Intercreditor AgreementsSecurity Document, it being understood and agreed that in respect of the Collateral, or any act, omission, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral Collateral, and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent Trustee or any Lender Holder as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officeran authorized officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower Company (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), and (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither Notwithstanding anything to the contrary in this Indenure (including this Article 11), in the event of a foreclosure on the Mortgaged Property and/or the exercise of its remedies under the Security Documents, the Trustee and Collateral Agent agree that they shall not take any action that results in the disturbance, extinguishment or termination of any Permitted Liens granted pursuant to clause 6(B) of the definition thereof. Upon the request of the Company, the Collateral Agent nor shall enter into (x) in the Administrative Agent shall be liable for delays case of any such Permitted Lien that is a lease, a subordination non-disturbance and attornment agreement and (y) in the case of any such other Permitted Lien, a nondisturbance agreement, consent or failures such other agreement which, in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts each case, confirms that in the event of Goda foreclosure on the Mortgaged Property and/or exercise of remedies under the Security Documents, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor (and its successors and assigns) will not disturb, extinguish or terminate any such Permitted Liens (or the Administrative Agent rights thereunder). Any request by the Company pursuant to the preceding sentence shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed evidenced by a certificate from an officer of the likelihood thereof and regardless Company which certificate shall certify that (1) the Permitted Liens in question do not materially adversely affect or impair (A) the business operations of the form Company and its Restricted Subsidiaries as a whole or (B) the validity or priority of actionthe Lien of the Mortgages on the balance of the Mortgaged Property and (2) the applicable non-disturbance agreement, consent or other agreement provides that the Permitted Liens in question are subordinate to the Lien in favor of the Collateral Agent on the Mortgaged Property.
Appears in 1 contract
Sources: Indenture (TPC Group Inc.)
Collateral Agent. (a) The Administrative Agent and each of the Lenders hereby designates and appoints the Collateral Agent Wilmington Trust Company shall initially act as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the authorized to appoint co-Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” Agents as necessary in this Agreement with reference to the Collateral 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 partiesits sole discretion. Except as expressly otherwise explicitly provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under herein or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Security Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, neither the Collateral Documents Agent nor any of its respective officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Intercreditor Agreements, Collateral or for any failure of the Borrower, any Guarantor delay in doing so or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to sell or otherwise dispose of any Collateral upon the Administrative Agent request of any other Person or to take any other action whatsoever with regard to the Collateral or any Lender to ascertain or to inquire part thereof. The Collateral Agent shall be accountable only for amounts that it actually receives as to a result of the observance or performance exercise of such powers, and neither the Collateral Agent nor any of the agreements contained inits officers, directors, employees or conditions ofagents shall be responsible for any act or failure to act hereunder, this Agreementexcept for its own willful misconduct, the Collateral Documents gross negligence or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliatesbad faith.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(db) The Collateral Agent is authorized and directed to (i) enter into the Collateral Security Documents, (ii) enter into the Intercreditor AgreementsAgreement, (iii) bind the Lenders Holders on the terms as set forth in the Collateral Security Documents and the Intercreditor Agreements Agreement and (iv) perform and observe its obligations under the Collateral Security Documents and the Intercreditor AgreementsAgreement.
(ec) The Administrative Agent agrees that it shall not If the Company (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any i) Incurs Priority Lien on, or otherwise enforce any security interest in, any of the Collateral. If Obligations at any time when no intercreditor agreement is in effect or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, at any proceeds of Collateral or any payments with respect time when Indebtedness constituting Priority Lien Obligations entitled to the Obligations arising underbenefit of an existing intercreditor agreement is concurrently retired, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or and (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral delivers to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien an Officers' Certificate so stating and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to requesting the Collateral Agent pursuant to this Agreement, any Collateral Document enter into an intercreditor agreement in favor of a designated agent or representative for the Intercreditor Agreements, it being understood and agreed that in respect holders of the Collateral, or any act, omission, or event related theretoIndebtedness so Incurred, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by is hereby authorized and directed to) enter into such intercreditor agreement, bind the Collateral Agent need not be segregated from other funds except to Holders on the extent required by law)terms set forth therein, (iii) the Collateral Agent may consult with counsel of and perform and observe its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to actobligations thereunder.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent and each of Each Secured Party hereby appoints Cipher Capital Partners LLC (the Lenders hereby designates and appoints “Collateral Agent”) as the Collateral Agent as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent hereunder and each of the Lenders hereby irrevocably Secured Party authorizes the Collateral Agent to take such action as agent on its behalf under the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers under this Agreement and perform such duties the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents under such agreements and the Intercreditor Agreements, together with to exercise such powers as are reasonably incidental thereto. The provisions Without limiting the foregoing, each Secured Party hereby authorizes the Collateral Agent to execute and deliver, and to perform its obligations under, each of this Section 12.11 are solely the documents to which the Collateral Agent is a party relating to security for the benefit obligations under the Notes, to exercise all rights, powers and remedies that the Collateral Agent may have under such Transaction Documents and, in the case of the Notes Collateral Agent and none of Transaction Documents, to act as agent for the Administrative Agent, Secured Parties under such Transaction Documents.
(b) As to any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as matters not expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in for by this Agreement, the Collateral Documents Agreement and the Intercreditor Agreementsother document relating thereto (including enforcement or collection), the Collateral Agent shall not have be required to exercise any duties discretion or responsibilities hereunder nor take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Lenders, and such instructions shall be binding upon all Secured Parties; provided, however, that the Collateral Agent have shall not be required to take any action that (i) the Collateral Agent in good faith believes exposes it to personal liability unless the Collateral Agent receives an indemnification satisfactory to it from the Secured Parties with respect to such action or (ii) is contrary to this Agreement or applicable law. The Collateral Agent agrees to give to each Secured Party prompt notice of (i) each notice given to it by the Company pursuant to the terms of this Agreement or the other Transaction Documents and (ii) the actions taken by the Collateral Agent on behalf of the Secured Party. If the Collateral Agent receives conflicting instructions from the Secured Parties it will not be required to act until it receives instructions from the Secured Parties holding a majority of the Notes (calculated in dollar amounts rather than noteholders).
(c) In performing its functions and duties hereunder and under the Transaction Documents and the other documents required to be executed or delivered in connection therewith, the Collateral Agent is acting solely on behalf of the Secured Parties and its duties are entirely administrative in nature. The Collateral Agent does not assume and shall not be deemed to have assumed any fiduciary relationship with obligation other than as expressly set forth herein, in the Administrative Agent, Transaction Documents and any Lender other documents required to be executed or delivered in connection therewith related hereto or any Guarantorother relationship as the agent, and no implied covenants, functions, responsibilities, duties, obligations fiduciary or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements trustee of or otherwise exist against the Collateral Agent. Without limiting the generality for any Secured Party or holder of the foregoing sentence, the use of the term “agent” in any other obligation under this Agreement with reference to or the Notes. The Collateral Agent is not intended to connote may perform any fiduciary of its duties under any Transaction Document by or other implied (through its agents 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lendersemployees.
(bd) None of the Collateral Agent Agent, any of its affiliates or any of its Affiliates their respective directors, officers, agents or employees shall (i) be liable for any action taken or omitted to be taken by any of it, him, her or them under or in connection with this Agreement or the transactions contemplated hereby (other Transaction Documents, except for its its, his, her or their own gross negligence or willful misconduct.
(e) Each Secured Party acknowledges that it shall, independently and without reliance upon the Collateral Agent or under or any other Secured Party conduct its own independent investigation of the financial condition and affairs of the Company and its Subsidiaries in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any issuance of the Administrative Securities. Each Secured Party also acknowledges that it shall, independently and without reliance upon the Collateral Agent or any Lender for any recitalother Secured Party and based on such documents and information as it shall deem appropriate at the time, statementcontinue to make its own credit decisions in taking or not taking action under this Agreement and other Transaction Documents. For avoidance of doubt, representation, warranty, covenant or agreement made by each Secured Party represents that it has had no contact with the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by Collateral Agent; and acknowledges that the Collateral Agent has had no role in the negotiation or preparation of the Transaction Documents and was contacted after such negotiations and documents were finalized for the purpose of serving solely in the administrative role of Collateral Agent under or in connection with, this Agreement.
(f) Each Secured Party, severally but not jointly and on a pro rata basis, agrees to indemnify the Collateral Documents Agent and each of its affiliates, and each of their respective directors, officers, employees, agents and advisors (to the extent not reimbursed by the Borrower), from any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses and disbursements (including fees, expenses and disbursements of financial and legal advisors) of any kind or the Intercreditor Agreementsnature whatsoever that may be imposed on, incurred by, or the validityasserted against, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under affiliates, directors, officers, employees, agents and advisors in any obligation way relating to or arising out of this Agreement or the Administrative Agent other Transaction Documents or any Lender to ascertain action taken or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not omitted by the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantordocument related thereto; provided, including the commencement of any legal or equitable proceedingshowever, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent that no Secured Party shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except be liable for any portion of such proceeds liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or payments received by the Administrative Agent disbursements resulting from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver or such Collateral to the Collateral Agent Affiliate’s gross negligence or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructionswillful misconduct.
(g) The Collateral Agent may resign at any time by giving written notice thereof to the Secured Parties and the Company. Upon any such resignation, the Secured Parties shall have no obligation whatsoever the right to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the appoint a successor Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the . If no successor Collateral Agent shall have no been so appointed by the Secured Parties, and shall have accepted such appointment, within 30 days after the retiring Collateral Agent’s giving of notice of resignation, then the retiring Collateral Agent may, on behalf of the Secured Parties, appoint a successor Collateral Agent, selected from among the Secured Parties. Upon the acceptance of any appointment as Collateral Agent by a successor Collateral Agent, such successor Collateral Agent shall succeed to, and become vested with, all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations under this Agreement, the Transaction Documents and any other duty documents required to be executed or liability whatsoever delivered in connection therewith. Prior to any retiring Collateral Agent’s resignation hereunder as Collateral Agent, the retiring Collateral Agent shall take such action as may be reasonably necessary to assign to the Administrative successor Collateral Agent or any Lender its rights as Collateral Agent under the Transaction Documents. After such resignation, the retiring Collateral Agent shall continue to have the benefit of this Agreement as to any of actions taken or omitted to be taken by it while it was Collateral Agent under this Agreement, the foregoingTransaction Documents and any other documents required to be executed or delivered in connection therewith.
(h) No provision of this Agreement, the Intercreditor Agreements or Each Secured Party agrees that any Collateral Document shall require action taken by the Collateral Agent (in accordance with the provisions of this Agreement or of the other document relating thereto, and the exercise by the Collateral Agent or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case Secured Parties of the Collateral Agent) if it powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall have reasonable grounds for believing that repayment be authorized and binding upon all of such funds is not assured to itthe Secured Parties.
(i) The Each of the Secured Parties hereby directs, in accordance with the terms hereof, the Collateral Agent to release (or in the case of clause (ii) below, release or subordinate) any Lien held by the Collateral Agent for the benefit of the Secured Parties against any of the following: (i) all of the Collateral upon payment and satisfaction in full of all obligations under the Notes and all other obligations under the Transaction Documents that the Collateral Agent has been notified in writing are then due and payable; (ii) any assets that are subject to a Lien permitted by Section 3.2); and (iii) any part of the Collateral sold or disposed of by the Company or any Subsidiary if such sale or disposition is permitted by this Agreement and the Notes (or permitted pursuant to a waiver or consent of a transaction otherwise prohibited by this Agreement and the Notes). Each of the Secured Parties hereby directs the Collateral Agent to execute and deliver or file such termination and partial release statements and do such other things as are necessary to release Liens to be released pursuant to this Section 7.14 promptly upon the effectiveness of any such release.
(j) The contact information for the Collateral Agent is: Cipher Capital Partners LLC, c/▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Partners, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇. The fax number for Cipher Capital Partners is (▇▇▇) ▇▇▇-▇▇▇▇ and the E-mail address is ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. The telephone number for Cipher Capital Partners is (▇▇▇) ▇▇▇-▇▇▇▇.
(k) The Collateral Agent:
(i) shall not be responsible in any manner for the validity, correctness or sufficiency of any document or instrument received by or made available to it, in its capacity as Collateral Agent hereunder.
(ii) shall be entitled to act upon any written certificate, statement, notice, demand, request, consent, agreement or other instrument whatever, not only in reliance upon its due execution and the validity and effectiveness of its provisions, but also as to the accuracy and completeness of any information therein contained, which the Collateral Agent shall in good faith believe to be genuine and to have been signed or presented by any authorized person.
(iii) shall be entitled to request and receive from any party hereto such documents in addition to those provided for herein as the Collateral Agent may deem necessary to resolve any questions of fact involved in the administration of its duties hereunder.
(iv) may, at the expense of the remaining parties, consult independent counsel of its choice in respect to any question relating to its duties or responsibilities under this Agreement, and shall not be liable for any action it takes taken or omits to take omitted in good faith which it reasonably believes on advice of such counsel.
(v) shall be under no obligation to be authorized advance any monetary sum in connection with the maintenance or within its rights administration of this Agreement, to institute or powersdefend any action, suit or legal proceeding in connection herewith, or for to take any error of judgment made in good faith by a Responsible Officer, unless it is proved that other action likely to involve the Collateral Agent was grossly negligent in ascertaining expense, unless first indemnified by the pertinent facts, remaining parties to the Collateral Agent’s satisfaction.
(iivi) shall not be liable bound by any amendment to this Agreement or by any other such amendment or agreement unless the same shall have been executed by the Collateral Agent.
(vii) shall have only such duties and responsibilities as are expressly set forth in this Agreement in the performance of its obligations hereunder.
(viii) acknowledges specifically its obligations under section 6.2(b) above regarding pro rata distributions of the proceeds of any collection or sale of the Collateral, as well as any Collateral consisting of cash.
(ix) may, if it becomes uncertain concerning its rights and responsibilities with respect to its duties or if it receives instructions with respect to the Collateral that it believes to be in conflict with this Agreement or is advised that a dispute has arisen with respect to its duties under this Agreement, without liability, refrain from taking any action until it is directed otherwise in a writing signed by all of the Secured Parties or by an order of a court of competent jurisdiction. The Collateral Agent is not obligated to institute or defend any legal proceedings, although it may, in its sole discretion and at the remaining parties’ expense, institute or defend such proceedings (including proceedings seeking a declaratory judgment) and join interested parties.
(x) The Collateral Agent will be paid a fee of $3,000 for interest on any money received by it except its agreement to serve as the Collateral Agent may agree in writing with Agent. This fee is payable upon the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel execution of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to actthis Agreement.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent and each Each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Indenture, the Security Documents, the Intercreditor Agreement and the Junior Lien Intercreditor Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent if any, and each of the Lenders Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Collateral Agent to take such action on its their behalf under the provisions of this Indenture, the Security Documents, the Intercreditor Agreement and the Junior Lien Intercreditor Agreement, the Collateral Documents and the Intercreditor Agreements if any, and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture, the Security Documents, the Intercreditor Agreement and the Junior Lien Intercreditor Agreement, if any, and consents and agrees to the terms of this Indenture, the Intercreditor Agreement, the Collateral Documents Junior Lien Intercreditor Agreement, if any, and each Security Document, as the Intercreditor Agreementssame may be in effect or may be amended, together restated, supplemented or otherwise modified from time to time in accordance with such powers as are reasonably incidental theretotheir respective terms. The Collateral Agent accepts such appointment and agrees to act as such on the express conditions contained in this Section 13.6. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Section 12.11 are solely for Indenture, the benefit of Intercreditor Agreement, the Notes Junior Lien Intercreditor Agreement, if any, and the Security Documents, and the exercise by the Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained or remedies set forth herein other than as expressly provided in Section 12.03and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Security Documents, the Intercreditor Agreement and the Junior Lien Intercreditor Agreement, if any, the duties of the Collateral Documents Agent shall be ministerial and the Intercreditor Agreementsadministrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder, the Company or any Subsidiary Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents, the Intercreditor Agreement and the Junior Lien Intercreditor Agreement, the Collateral Documents and the Intercreditor Agreements if any, or otherwise exist exist, against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the The Collateral Agent or may perform any of its Affiliates duties under this Indenture, the Security Documents, the Intercreditor Agreement or the Junior Lien Intercreditor Agreement, if any, by or through receivers, agents, employees or attorneys-in-fact and shall be entitled to advice of counsel of its selection concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by such counsel. The Collateral Agent shall not be responsible for the negligence or misconduct of any receiver, agent, employee or attorney-in-fact that it selects as long as such selection was made in good faith and with due care.
(c) The Collateral Agent shall not (i) be liable for any action taken or omitted to be taken by any of them it under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document Security Document, the Intercreditor Agreement or the Junior Lien Intercreditor Agreements Agreement, if any, or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Company or any Subsidiary Guarantor, or any officer or Affiliate of any of the foregoingOfficer thereof, contained in this Indenture, the Security Documents, the Intercreditor Agreement, or any the Junior Lien Intercreditor Agreement, if any, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Indenture, the Security Documents, the Intercreditor Agreement or the Junior Lien Intercreditor Agreement, the Collateral Documents or the Intercreditor Agreementsif any, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents, the Intercreditor Agreement or the Junior Lien Intercreditor Agreement, the Collateral Documents or the Intercreditor Agreementsif any, or for any failure of the BorrowerCompany, any Subsidiary Guarantor or any other party to this Indenture, the Security Documents, the Intercreditor Agreement or the Junior Lien Intercreditor Agreement, the Collateral Documents or the Intercreditor Agreements if any, to perform its obligations hereunder or thereunder. None of the The Collateral Agent or any of its Affiliates shall not be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents, the Intercreditor Agreement or the Junior Lien Intercreditor Agreement, the Collateral Documents or the Intercreditor Agreements if any, or to inspect the properties, books, or records of the BorrowerCompany, any Subsidiary Guarantor or any Guarantor’s of their Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized shall be entitled to rely, and directed shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (i) enter including, without limitation, counsel to the Company or any Subsidiary Guarantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents, (ii) enter into the Intercreditor AgreementsAgreement or the Junior Lien Intercreditor Agreement, (iii) bind if any, unless it shall first receive such advice or concurrence of the Lenders on Holders of a majority in aggregate principal amount of the terms as set forth Notes and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents and Security Documents, the Intercreditor Agreements Agreement or the Junior Lien Intercreditor Agreement, if any, in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and (iv) perform such request and observe its obligations under any action taken or failure to act pursuant thereto shall be binding upon all of the Collateral Documents and the Intercreditor AgreementsHolders.
(e) The Administrative Collateral Agent agrees that it shall not (and shall not be obliged to)deemed to have knowledge or notice of the occurrence of any Event of Default, and shall not instruct unless a responsible officer of the Collateral Agent toshall have received written notice from the Trustee or the Company referring to this Indenture, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement describing such Event of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any Default and stating that such notice is a “notice of the Collateral. If at any time or times the Administrative default.” The Collateral Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments take such action with respect to such Event of Default as may be requested in accordance with, and subject to the Obligations arising underprovisions of, or relating to, this Agreement, except for any such proceeds or payments received Article 6 by the Administrative Agent from Trustee or the Collateral Agent pursuant Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.6 and the terms of this the Intercreditor Agreement and any Junior Lien Intercreditor Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent).
(f) The Administrative Collateral Agent is each Lender’s may resign at any time upon 30 days’ advance written notice to the Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possessionto its appointment as Collateral Agent. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify If the Collateral Agent thereofresigns under this Indenture, and, promptly upon the Collateral Agent’s request therefor Company shall deliver such Collateral appoint a successor collateral agent prior to the intended effective date of the resignation of the Collateral Agent or otherwise deal with such Collateral (as stated in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have notice of resignation). If no obligation whatsoever successor collateral agent is appointed prior to the Administrative Agent or any intended effective date of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest resignation of the Collateral Documents has been properly and completely listed or delivered, Agent (as stated in the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty notice of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretoresignation), the Collateral Agent may act in any manner it may deem appropriateappoint, in its sole discretion given at the Collateral Agent’s own interest direction of the Holders of a majority of the aggregate principal amount of the Notes then outstanding, a successor collateral agent, subject to the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed, and which shall not be required during a continuing Event of Default). If no successor collateral agent is appointed and consented to by the Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the Collateral and that notice of resignation) the Collateral Agent shall have no other duty or liability whatsoever be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the Administrative Agent or any Lender acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to any all the rights, powers and duties of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the retiring Collateral Agent) if it , and the term “Collateral Agent” shall have reasonable grounds for believing that repayment of mean such funds is not assured to it.
(i) The successor collateral agent, and the retiring Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powersAgent’s appointment, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except powers and duties as the Collateral Agent may agree in writing with shall be terminated subject to payment of its fees and expenses. After the Borrower retiring Collateral Agent’s resignation hereunder, the provisions of this Section 13.6 (and money held in trust by the Collateral Agent need not be segregated from other funds except Section 7.6 hereof) shall continue to the extent required by law), (iii) the Collateral Agent may consult with counsel of inure to its selection benefit and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the retiring Collateral Agent shall not by reason of such resignation be construed deemed to impose duties be released from liability as to act.
(j) Neither any actions taken or omitted to be taken by it while it was the Collateral Agent nor under this Indenture, the Administrative Agent shall be liable for delays Note Guarantees, the Notes, the Security Documents, the Intercreditor Agreement or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionJunior Lien Intercreditor Agreement.
Appears in 1 contract
Sources: Indenture (Sealed Air Corp/De)
Collateral Agent. (a) The Administrative Agent Issuer, the Grantor and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture and the Security Documents, and the Issuer, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent Grantor and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents, and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture and the Security Documents, and consents and agrees to the terms of each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. In addition, by acceptance of the Notes, each Holder will be deemed to have, (1) irrevocably appointed Wilmington Trust, National Association, as Collateral Agent to act as its collateral agent under the Security Documents and any other relevant documents to which the Collateral Agent is a party, and (2) irrevocably authorized the Collateral Agent to (i) perform the duties and exercise the rights, powers, and discretions that are specifically given to it under the Security Documents and or other documents to which the Intercreditor AgreementsCollateral Agent is a party, together with such powers as are reasonably any other incidental theretorights, power and discretions and (ii) execute each document expressed to be executed by Collateral Agent on its behalf. The Collateral Agent agrees to act as such on the express conditions contained in this Section 12.7. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Section 12.11 are solely for Indenture and the benefit of Security Documents, and the Notes exercise by the Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained or remedies set forth herein other than as expressly provided in Section 12.03and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture and the Security Documents, the duties of the Collateral Documents Agent shall be ministerial and the Intercreditor Agreementsadministrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the Security Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder, the Issuer or any Guarantorthe Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the The Collateral Agent or may perform any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them duties under or in connection with this Agreement Indenture or the transactions contemplated hereby Security Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (except a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for its own gross the negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate misconduct of any of the foregoingreceiver, contained agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliatesgood faith and with due care.
(c) The Collateral Agent shall be entitled to rely, and its Affiliates may make loans toshall be fully protected in relying, issue letters of credit for the account ofupon any writing, accept deposits fromresolution, acquire equity interests in and generally engage in any kind of bankingnotice, trustconsent, financial advisorycertificate, underwritingaffidavit, letter, telegram, facsimile, certification, telephone message, statement, or other business with communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the Borrowerproper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Guarantor Grantor), independent accountants and their Affiliates as though it was not other experts and advisors selected by the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under any obligation to provide such information to the Administrative Agent this Indenture or the Lenders. Nothing herein Security Documents, unless it shall impose first receive such advice or imply any obligation on the part concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Security Documents, in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to advance fundsact pursuant thereto shall be binding upon all of the Holders.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements[Reserved].
(e) The Administrative Collateral Agent agrees that it shall not (and shall not be obliged to), and shall not instruct deemed to have knowledge or notice of the Collateral Agent tooccurrence of any Default or Event of Default, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement a Trust Officer of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to received written notice from the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (Trustee or the Administrative Agent) Issuer referring to expend this Indenture, describing such Default or risk its own funds or otherwise incur any financial liability in the performance Event of any Default and stating that such notice is a “notice of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to itdefault.
(i) ” The Collateral Agent (i) shall not take such action with respect to such Default or Event of Default as may be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust requested by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and Trustee in accordance with Article VI or the advice or opinion Holders of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures a majority in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed aggregate principal amount of the likelihood thereof and regardless of the form of actionNotes (subject to this Section 12.7).
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent Wilmington Trust, National Association, is hereby designated and each of the Lenders hereby designates and appoints appointed as the Collateral Agent of the Notes Secured Parties under this Indenture, the Security Documents and the Intercreditor Agreement, and Wilmington Trust, National Association hereby accepts such designation and appointment.
(b) By accepting a Note, each Holder will be deemed to have irrevocably appointed the Collateral Agent to act as its agent under this Agreement, the Collateral Security Documents and the Intercreditor Agreements Agreement and the Administrative Agent and each of the Lenders hereby to have irrevocably authorizes authorized the Collateral Agent to take such action on its behalf (i) perform the duties and exercise the rights, powers and discretions that are specifically given to it under the provisions of this AgreementSecurity Documents, the Collateral Documents and the Intercreditor Agreements and Agreement or other documents to exercise such which it is a party, together with any other incidental rights, powers and perform such duties as are expressly delegated discretions; and (ii) execute each document expressed to be executed by the Collateral Agent on its behalf. Each of the Holders hereby exempts the Collateral Agent from any restrictions on representing several persons and self-dealing under any applicable law to the extent legally possible for such Holder. Each Holder agrees that any action taken by the terms Collateral Agent in accordance with the provision of this AgreementIndenture, the Collateral Documents Intercreditor Agreement and the Intercreditor AgreementsSecurity Documents, together with such powers as are reasonably incidental theretoand the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. The provisions of this Section 12.11 7.14 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower Holders nor any of the Guarantors Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. herein.
(c) Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Security Documents and the Intercreditor AgreementsAgreement, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the other Note Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” or “Agent” in this Agreement Indenture and the other Security Documents with reference to the Collateral 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.
(d) Notwithstanding anything to the contrary contained herein, the Collateral Agent shall solely act pursuant to the instructions of the Holders and the Trustee with respect to the Security Documents and the Collateral. Except The Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreement unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as expressly otherwise provided it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all loss, liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders. After the occurrence of an Event of Default, the Trustee or the Holders of a majority in aggregate principal amount of the Notes may direct the Collateral Agent in connection with any action required or permitted by this Indenture, the Security Documents or the Intercreditor Agreement. For the avoidance of doubt, the Collateral Agent shall have and may use its sole no discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this AgreementIndenture, the Collateral Intercreditor Agreement or the Security Documents and shall not be required to make or give any determination, consent, approval, request or direction without the Intercreditor Agreementswritten direction of the Holders of a majority in aggregate principal amount of the then outstanding Notes or the Trustee, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lendersas applicable.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(de) The Collateral Agent is authorized and directed empowered to (i) enter into appoint one or more subagents or co-collateral agents as it deems necessary or appropriate, including without limitation the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations collateral agents under the Collateral Documents and Credit Agreements (including any successor collateral agents under the Intercreditor Credit Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Collateral Agent shall notify have all the rights and protection provided in the Security Documents as well as the rights and protections afforded to the Trustee in Sections 7.2 and 7.7 hereof; provided, however, that the Issuer shall not reimburse any expense or indemnify against any loss, liability or expense incurred by the Collateral Agent thereof, and, promptly upon through the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent own willful misconduct or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructionsgross negligence, as determined by a final non-appealable order of a court of competent jurisdiction.
(g) None of the Trustee, the Collateral Agent or any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, continuation of perfection, priority, sufficiency or protection of any Lien securing the Notes (including without limitation the filing or continuation of any UCC financing or continuation statements or similar documents or instruments) or any defect or deficiency as to any such matters, except to the extent any possessory collateral is delivered to the Collateral Agent for perfection purposes. The Collateral Agent shall have no obligation whatsoever not be required to initiate or conduct any litigation or collection or other proceeding under this Indenture, the Administrative Agent or any of Intercreditor Agreement and the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title theretoSecurity Documents, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this AgreementIndenture, any Collateral Security Document or the Intercreditor AgreementsAgreement other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the Notes, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent Trustee or any Lender Holder as to any of the foregoingforegoing unless expressly set forth hereunder or thereunder.
(h) No provision of this Subject to the Security Documents and the Intercreditor Agreement, except as directed by the Intercreditor Agreements Trustee as required or any Collateral Document shall require permitted by this Indenture, the Collateral Agent will not be obligated:
(or the Administrative Agent1) to expend or risk its own funds act upon directions purported to be delivered to it by any Person;
(2) to foreclose upon or otherwise incur enforce any financial liability in Lien securing the performance of any of its duties hereunder or thereunder or to take or omit Notes; or
(3) to take any other action hereunder whatsoever with regard to any or thereunder or take any action at all of the request or direction of Lenders (Liens securing the Notes, Security Documents or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to itCollateral.
(i) The In acting as Collateral Agent (i) shall not be liable for any action it takes Agent, co-collateral agent or omits to take in good faith which it reasonably believes to be authorized or within its rights or sub-collateral agent, the Collateral Agent, each co-collateral agent and each sub-collateral agent may rely upon and enforce each and all of the rights, powers, or for any error of judgment made in good faith by a Responsible Officerimmunities, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (indemnities and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed benefits of the likelihood thereof and regardless of the form of actionTrustee under this Article VII.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints acknowledge the Issuer’s appointment of the Collateral Agent as its the Trustee’s and the Holders’ collateral agent under this Agreement, Indenture and the Collateral Documents Agreements, and the Intercreditor Agreements and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes authorize the Collateral Agent to take such action on its their behalf under the provisions of this Agreement, Indenture and the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, Indenture and the Collateral Documents and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The Collateral Agent agrees to act as such on the express conditions contained in this Section 11.06. The provisions of this Section 12.11 11.06 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the LendersHolders, the Borrower nor Issuer or any of the Guarantors other Collateral Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03herein. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, Indenture and the Collateral Documents and the Intercreditor Agreements, the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the Collateral Agreements, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or the Issuer or any Guarantorother Collateral Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, Indenture and the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral Agent is shall not intended be construed 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) The Collateral Agent may execute any of its duties under this Indenture and the Collateral Agreements by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and the written advice of such counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent, employee or attorney-in-fact that it selects as long as such selection was made without negligence or willful misconduct.
(c) None of the Collateral Agent or any of its Affiliates agents or employees shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence negligence, bad faith or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence negligence, bad faith or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Issuer or any Guarantor, other Collateral Grantor contained in this Indenture or any officer or Affiliate of any of the foregoing, contained in this or any AgreementCollateral Agreements, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, Indenture or any of the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, Indenture or any of the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, Issuer or any Guarantor other Collateral Grantor or any other party to this Agreement, Indenture or any of the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates agents or employees shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement, Indenture or any of the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, books or records of the Borrower, any Guarantor Issuer or any Guarantor’s Affiliates.
(c) The other Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance fundsGrantor.
(d) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee acting in accordance with Article 6 (subject to this Section 11.06); provided, however, that unless and until the Collateral Agent has received any such request, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.
(e) The Collateral Agent may resign at any time by so notifying the Issuer and the Trustee in writing at least thirty (30) days prior to the proposed date of resignation, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral Agent resigns under this Indenture, the Trustee, subject to the consent of the Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), shall appoint a successor Collateral Agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent (as stated in the notice of resignation), the Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor Collateral Agent, which may be the same Person as the Trustee. If no successor Collateral Agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation), the Collateral Agent, the Issuer or the Holders of at least 10% in principal amount of the then outstanding principal amount of the Notes shall be entitled to petition at the expense of the Issuer a court of competent jurisdiction to appoint a successor Collateral Agent. A successor Collateral Agent shall deliver a written acceptance of its appointment to the retiring Collateral Agent and to the Issuer. Thereupon, the resignation of the retiring Collateral Agent shall become effective, and the successor Collateral Agent shall have all the rights, powers and the duties of the Collateral Agent under this Indenture and the Collateral Agreements. The successor Collateral Agent shall mail a notice of its succession to the Trustee. The retiring Collateral Agent shall promptly transfer all property held by it as Collateral Agent to the successor Collateral Agent, provided that all sums owing to the retiring Collateral Agent hereunder have been paid. Notwithstanding the replacement of the Collateral Agent pursuant to this Section 11.06(e), the Issuer’s obligations under this Section 11.06 and Section 11.11 shall continue for the benefit of the retiring Collateral Agent. In the event that the Collateral Agent is required to acquire title to an asset for any reason, or take any operational or managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Collateral Agent’s sole discretion may cause the Collateral Agent to incur potential liability under CERCLA, any Environmental Law or any other federal, state or local law, the Collateral Agent reserves the right, instead of taking such action, to either resign as the Collateral Agent or arrange for the transfer of the title or control of the asset to a court-appointed receiver. The Collateral Agent shall not be liable to the Parent, the Issuer, the Holders of Notes, or any other Person for any Environmental Claims or any liability arising under CERCLA, any Environmental Law, or under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to the presence, release or threatened release of Hazardous Materials.
(f) Except as otherwise explicitly provided herein or in the Collateral Agreements, neither the Collateral Agent nor any of its officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. 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.
(g) The Trustee is authorized and directed by the Holders and the Holders by acquiring the Notes are deemed to have authorized the Trustee, as applicable, to (i) enter into the Collateral DocumentsAgreements to which it is a party, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders Holders on the terms as set forth in the such Collateral Documents and the Intercreditor Agreements and Agreements, (iviii) perform and observe its obligations and exercise its rights and powers under such Collateral Agreements, including entering into amendments permitted by the terms of this Indenture or the Collateral Agreements and (iv) cause the Collateral Agent to enter into and perform its obligations under the Collateral Documents Agreements. The Collateral Agent is authorized and directed by the Trustee and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (Holders and shall not be obliged to), and shall not instruct the Holders by acquiring the Notes are deemed to have authorized the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedingsAgent, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by paymententer into the Collateral Agreements to which it is a party, foreclosure(ii) bind the Trustee and the Holders on the terms as set forth in such Collateral Agreements and (iii) perform and observe its obligations and exercise its rights and powers under such Collateral Agreements, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received including entering into amendments permitted by the Administrative Agent from terms of this Indenture or the Collateral Agent pursuant Agreements. Each Holder, by its acceptance of a Note, is deemed to have consented and agreed to the terms of this each Collateral Agreement, as originally in effect and as amended, restated, replaced, supplemented or (ii) payments modified from time to time in accordance with its terms or the Collateral Agent in excess terms of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agentthis Indenture.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(gh) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent Trustee or any of the Lenders Holders to assure that the Collateral exists or is owned by the Borrower Issuer or any Guarantor of the other Collateral Grantors or is cared for, protected, protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or of the Borrower or any GuarantorCollateral Grantor’s property constituting collateral Collateral intended to be subject to the Lien and security interest of the Collateral Documents Agreements has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which that it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officeran authorized officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower Issuer (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), and (iii) the Collateral Agent may consult with counsel of its selection and the written advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counselreliance thereon. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither . For the avoidance of doubt, nothing herein shall require the Collateral Agent nor to file financing statements or continuation statements, or be responsible for maintaining the Administrative Agent security interests purported to be created by the Collateral Agreements (except for the safe custody of any Collateral in its possession and the accounting for moneys actually received by it under this Indenture or any Collateral Agreement) and such responsibility shall be liable for delays or failures in performance resulting from acts beyond its controlsolely that of the Issuer. Such acts shall include but not be limited Notwithstanding anything else to acts of Godthe contrary herein, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers required in writing by the Administrative Holders of at least a majority in aggregate principal amount of the Notes then outstanding (or such other number or percentage of the aggregate principal amount of Notes as shall be necessary under the circumstances as provided in the Indenture). Whenever reference is made in any Collateral Agreements 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 Collateral 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 Collateral Agent, it is understood that in all cases the Collateral Agent shall have no duty and shall be liable for fully justified in failing or refusing to take any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if such action under unless it has been informed shall have received written instructions from the Holders of at least a majority in aggregate principal amount of the likelihood thereof and regardless Notes then outstanding (or such other number or percentage of the form aggregate principal amount of actionNotes as shall be necessary under the circumstances as provided in the Indenture). The Collateral Agent may refuse to act if in the Collateral Agent’s opinion such action (i) is contrary to law or the provisions of any Collateral Agreements; (ii) may expose the Collateral Agent to financial or personal liability (unless the Collateral Agent shall have received indemnity and security to its satisfaction for such liability); or (iii) is unduly prejudicial to Secured Parties not joining in such notice, consent, direction or instruction.
Appears in 1 contract
Sources: Indenture (Pacific Drilling S.A.)
Collateral Agent. (a) The Administrative Agent and each of the Lenders hereby designates and appoints the Collateral Agent as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have all the rights and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which protections provided in the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Security Documents and the applicable Intercreditor Agreements, including the Agreement and shall have no responsibility to exercise of remedies any discretionary power or right provided in any Security Document except as expressly required pursuant to Article VIIIthe Security Documents or the applicable Intercreditor Agreement or to ensure the existence, and genuineness, value or protection of any action so taken Collateral or not taken shall be deemed consented to by ensure the Administrative Agent and legality, enforceability, effectiveness or sufficiency of the LendersSecurity Documents or the creation, perfection, priority, sufficiency or protection of any Lien or any defect or deficiency as to any such matters.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent Trustee is authorized and directed to (i) enter into the Collateral DocumentsFirst Lien Intercreditor Agreement, (ii) appoint the Collateral Agent as the Collateral Agent and to authorize the Collateral Agent (and the Holders hereby authorize the Collateral Agent) to enter into the First Lien Intercreditor AgreementsAgreement and the Security Documents for the benefit of the Holders, (iii) bind the Lenders Holders on the terms as set forth in the Collateral Security Documents and the First Lien Intercreditor Agreements and Agreement, (iv) perform and observe the Trustee’s obligations and exercise its rights (and the Trustee and the Holders hereby authorize and direct the Collateral Agent to perform and observe its obligations and exercise its rights) under the Collateral Documents First Lien Intercreditor Agreement and the Security Documents, and (v) execute and deliver (and the Holders hereby authorize and direct the Collateral Agent to execute and deliver) any other Intercreditor AgreementsAgreement, in each case to the extent not prohibited by the other provisions of this Indenture or the Securities.
(ec) The Administrative Subject to Section 7.01, neither the Trustee nor the Collateral Agent agrees nor any of their officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien or any defect or deficiency as to any such matters.
(d) Notwithstanding anything to the contrary in this Indenture and the Security Documents (but subject to Sections 4.05 and 4.09), the Company and the Guarantors shall be permitted to enter into an asset backed loan facility (an “ABL Facility” and the Obligations thereunder, the “ABL Obligations”) after the Issue Date. Upon receipt of an instruction letter from the Company, addressed to the Trustee and the Collateral Agent: (1) (i) in the event that it the Company enters into the ABL Facility as described in the first sentence of this Section, the Trustee shall not (and shall not be obliged to), the Trustee and shall not instruct the Holders hereby authorize and direct the Collateral Agent to, unless specifically requested to do so by on its own behalf and on behalf of the Required Lenders, take or cause to be taken any action to enforce its rights First Lien Secured Parties under this Indenture), enter into the Senior Lien Intercreditor Agreement and any other documents or against agreements reasonably necessary in connection with the Borrower or any GuarantorABL Facility and take such action necessary to terminate the First Lien Intercreditor Agreement and (ii) thereafter, including in the commencement of any legal or equitable proceedingsevent such ABL Facility has been terminated and all ABL Facility Obligations have been terminated, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times Trustee shall (and the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to Trustee and the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from Holders hereby authorize and direct the Collateral Agent pursuant to the terms of this Agreementto, or (ii) payments from the Collateral Agent in excess on its own behalf and on behalf of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the First Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or Secured Parties under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by lawIndenture), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.enter into the
Appears in 1 contract
Sources: Indenture (National CineMedia, LLC)
Collateral Agent. (a) The Administrative Trustee shall initially act as Collateral Agent and each of shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Lenders hereby designates and appoints Security Documents, neither the Collateral Agent as nor any of its agent under this Agreementrespective officers, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent directors, employees or agents shall be liable for failure to take such action on its behalf under the provisions of this Agreementdemand, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, collect or realize upon any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor delay in doing so or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to sell or otherwise dispose of any Collateral upon the Administrative Agent request of any other Person or to take any other action whatsoever with regard to the Collateral or any Lender to ascertain or to inquire part thereof. The Collateral Agent shall be accountable only for amounts that it actually receives as to a result of the observance or performance exercise of such powers, and neither the Collateral Agent nor any of the agreements contained inits officers, directors, employees or conditions ofagents shall be responsible for any act or failure to act hereunder, this Agreementexcept for its own willful misconduct, the Collateral Documents gross negligence or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliatesbad faith.
(cb) The Trustee, as Collateral Agent and its Affiliates may make loans toAgent, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Security Documents, (ii) enter into the Intercreditor AgreementsAgreement, (iii) bind the Lenders Holders on the terms as set forth in the Collateral Security Documents and the Intercreditor Agreements Agreement and (iv) perform and observe its obligations under the Collateral Security Documents and the Intercreditor AgreementsAgreement.
(ec) The Administrative Agent agrees that it shall not If the Company (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this i) incurs Indebtedness constituting Credit Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If Obligations at any time when no Intercreditor Agreement is in effect or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, at any proceeds of Collateral or any payments with respect time when Indebtedness constituting Credit Agreement Obligations entitled to the Obligations arising underbenefit of an existing Intercreditor Agreement is concurrently retired, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or and (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral delivers to the Collateral Agent or otherwise deal with such Collateral in accordance with an Officers' Certificate so stating and requesting the Collateral Agent’s instructionsAgent 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.
(gd) The If (i) the Company at any time after the Closing Date incurs any Indebtedness constituting Secondary Collateral Agent shall have no obligation whatsoever to Obligations, (ii) the Administrative Agent indenture or any of agreement governing such Indebtedness provides that, notwithstanding the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared fordate, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under order of grant, attachment or perfection of any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers second-priority Liens granted or available to the Collateral Agent pursuant under the Security Documents (the "Second-Priority Liens Securing Note Obligations") or granted to this Agreement, any the holders of Secondary Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, Obligations or any act, omission, agent or event related theretorepresentative for the holders of Secondary Collateral Obligations (the "Liens Securing Secondary Collateral Obligations"), the Second-Priority Liens Securing Note Obligations and the Liens Securing Secondary Collateral Agent may act in any manner it may deem appropriateObligations shall be of equal, in its sole discretion given the Collateral Agent’s own interest in the Collateral dignity, priority and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law)rank, (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers Company delivers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither an Officers' Certificate so stating and requesting that the Collateral Agent nor assign or transfer the Administrative Second-Priority Liens Securing Note Obligations to a Common Collateral Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited identified therein and (iv) the Company delivers to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor and the Administrative Common Collateral Agent an Opinion of Counsel further confirming as to all such Liens each of the matters referred to in Section 10.02(a)(i), giving effect to the assignment or transfer requested in such Officers' Certificate, then (A) the Second-Priority Liens Securing Note Obligations shall be liable for any indirectof equal dignity, special or consequential damages priority and rank with all such Liens Securing Secondary Collateral Obligations and (included but not limited to lost profitsB) whatsoeverthe Collateral Agent shall, even if it has been informed upon receipt of the likelihood thereof and regardless of necessary or proper documentation prepared by the form of actionCompany, assign or transfer the Second-Priority Liens Securing Note Obligations to the Common Collateral Agent as requested in such Officers' Certificate.
Appears in 1 contract
Sources: Indenture (Uniplast Industries Co)
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements, together and consents and agrees to the terms of the Intercreditor Agreements and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as such powers as are reasonably incidental theretoon the express conditions contained in this Section 12.9. The provisions of this Section 12.11 12.9 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower Holders nor any of the Guarantors Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0312.4. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provision of this Indenture, the Intercreditor Agreements and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the other Note Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the .
(b) The Collateral Agent shall have and may use perform any of its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert duties under this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the Intercreditor Agreementsrespective officers, including the exercise directors, employees, agents, advisors and attorneys-in-fact of remedies pursuant such Person and its Affiliates, (a “Related Person”) and shall be entitled to Article VIIIadvice of counsel concerning all matters pertaining to such duties, and any action so taken or not taken shall be deemed consented entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the Administrative Agent and the Lendersnegligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(bc) None of the Collateral Agent or any of its Affiliates respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower an Issuer or any Guarantor, or any officer other Grantor or Affiliate of any of the foregoingGrantor, or any Officer or Related Person thereof, contained in this Indenture, or any Agreementother Note Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor Grantor or any other party to this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor Grantor or any GuarantorGrantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized shall be entitled to rely, and directed shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (i) enter including, without limitation, counsel to the Issuers or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral DocumentsAgent shall be fully justified in failing or refusing to take any action under this Indenture, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and (iv) perform all liability, loss and observe its obligations expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents and or the Intercreditor AgreementsAgreements in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e) The Administrative Collateral Agent agrees that it shall not (and shall not be obliged to)deemed to have knowledge or notice of the occurrence of any Default or Event of Default, and shall not instruct unless a Trust Officer of the Collateral Agent toshall have received written notice from the Trustee or the Issuers referring to this Indenture, unless specifically requested to do so by the Required Lenders, take describing such Default or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement Event of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any Default and stating that such notice is a “notice of the Collateral. If at any time or times the Administrative default.” The Collateral Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments take such action with respect to the Obligations arising under, such Default or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms Event of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements Default as may be required requested by the Trustee in accordance with Article VI or the Holders of a majority in aggregate principal amount of the Notes (subject to negotiate the same to the Collateral Agentthis Section 12.9).
(f) The Administrative Collateral Agent is each Lender’s may resign at any time by notice to the Trustee and the Issuers, such resignation to be effective upon the acceptance of a successor agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possessionto its appointment as Collateral Agent. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify If the Collateral Agent thereofresigns under this Indenture, and, promptly upon the Collateral Agent’s request therefor Issuers shall deliver such Collateral appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent or otherwise deal with such Collateral (as stated in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any notice of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretoresignation), the Collateral Agent may act in any manner it may deem appropriateappoint, in its sole discretion given after consulting with the Collateral Agent’s own interest Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Issuers pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the Collateral and that notice of resignation) the Collateral Agent shall have no other duty or liability whatsoever be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the Administrative Agent or any Lender acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to any all the rights, powers and duties of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the retiring Collateral Agent) if it , and the term “Collateral Agent” shall have reasonable grounds for believing that repayment of mean such funds is not assured to it.
(i) The successor collateral agent, and the retiring Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powersAgent’s appointment, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except powers and duties as the Collateral Agent may agree in writing with shall be terminated. After the Borrower retiring Collateral Agent’s resignation hereunder, the provisions of this Section 12.9 (and money held in trust by the Collateral Agent need not be segregated from other funds except Section 7.7) shall continue to the extent required by law), (iii) the Collateral Agent may consult with counsel of inure to its selection benefit and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the retiring Collateral Agent shall not by reason of such resignation be construed deemed to impose duties be released from liability as to act.
(j) Neither any actions taken or omitted to be taken by it while it was the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionunder this Indenture.
Appears in 1 contract
Sources: Indenture (Acelity L.P. Inc.)
Collateral Agent. (a) The Administrative Agent and each of the Lenders hereby designates and appoints the Collateral Agent Trustee shall initially act as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the authorized to appoint co-Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” Agents as necessary in this Agreement with reference to the Collateral 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 partiesits sole discretion. Except as expressly otherwise explicitly provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under herein or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Security Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, neither the Collateral Documents Agent nor any of its respective officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Intercreditor Agreements, Collateral or for any failure of the Borrower, any Guarantor delay in doing so or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to sell or otherwise dispose of any Collateral upon the Administrative Agent request of any other Person or to take any other action whatsoever with regard to the Collateral or any Lender to ascertain or to inquire part thereof. The Collateral Agent shall be accountable only for amounts that it actually receives as to a result of the observance or performance exercise of such powers, and neither the Collateral Agent nor any of the agreements contained inits officers, directors, employees or conditions ofagents shall be responsible for any act or failure to act hereunder, this Agreementexcept for its own willful misconduct, the Collateral Documents gross negligence or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliatesbad faith.
(cb) The Trustee, as Collateral Agent and its Affiliates may make loans toAgent, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Agreement Joinder and any other Security Documents, (ii) enter into the Intercreditor AgreementsAgreement Joinder, (iii) bind the Lenders Holders on the terms as set forth in the Collateral Security Documents and the Intercreditor Agreements Agreement and (iv) perform and observe its obligations under the Collateral Security Documents and the Intercreditor AgreementsAgreement.
(ec) The Administrative Agent agrees that it shall not If the Issuers (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any i) Incur First-Priority Lien on, or otherwise enforce any security interest in, any of the Collateral. If Obligations at any time when no intercreditor agreement is in effect or times the Administrative Agent shall receive (i) by payment, foreclosure, setat any time when Indebtedness constituting First-off or otherwise, any proceeds of Collateral or any payments with respect Priority Lien Obligations entitled to the Obligations arising underbenefit of an existing Intercreditor Agreement is concurrently retired, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or and (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral delivers to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien an Officers’ Certificate so stating and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to requesting the Collateral Agent pursuant to this Agreement, any Collateral Document or enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreements, it being understood and agreed that Agreement in respect effect on the Issue Date) in favor of a designated agent or representative for the holders of the Collateral, or any act, omission, or event related theretoFirst-Priority Lien Obligations so Incurred, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by is hereby authorized and directed to) enter into such intercreditor agreement, bind the Collateral Agent need not be segregated from other funds except to Holders on the extent required by law), (iii) the Collateral Agent may consult with counsel of terms set forth therein and perform and observe its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to actobligations thereunder.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders holders by acceptance of the Securities hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements Agreement and the Administrative Agent Trustee and each of the Lenders holders by acceptance of the Securities hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Documents and the Intercreditor AgreementsAgreement, together with such powers as are reasonably incidental thereto. The Collateral Agent agrees to act as such on the express conditions contained in this Section 11.9. The provisions of this Section 12.11 11.9 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, holders or the Borrower nor Company or any of the Note Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0311.4. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Documents and the Intercreditor AgreementsAgreement, the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative AgentTrustee, any Lender holder or the Company or any Note Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this AgreementIndenture, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this AgreementIndenture, the Collateral Documents and the Intercreditor AgreementsAgreement, including the exercise of remedies pursuant to Article VIIIVI, and any action so taken or not taken shall be deemed consented to by the Administrative Agent Trustee and the Lendersholders.
(b) The Collateral Agent may execute any of its duties under this Indenture, the Collateral Documents or the Intercreditor Agreement by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent, employee or attorney-in-fact that it selects as long as such selection was made without negligence or willful misconduct.
(c) None of the Collateral Agent or any of its Affiliates agents or employees shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Company or any Note Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any AgreementIndenture, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreementor any other Indenture, the Collateral Documents or the Intercreditor AgreementsAgreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreementor any other Indenture and the Collateral Documents, the Collateral Documents or the Intercreditor AgreementsAgreement, or for any failure of the Borrower, Company or any Note Guarantor or any other party to this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements Agreement to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates agents or employees shall be under any obligation to the Administrative Agent Trustee or any Lender holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreementor any other Indenture, the Collateral Documents or the Intercreditor Agreements Agreement or to inspect the properties, books, books or records of the Borrower, any Guarantor Company or any Note Guarantor’s Affiliates.
(cd) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Company or any Note Guarantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall be fully justified in failing or refusing to take any action under this or any other Indenture, the Collateral Documents or the Intercreditor Agreement unless it shall first receive such advice or concurrence of the Trustee as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this or any other Indenture, the Collateral Documents or the Intercreditor Agreement in accordance with a request or consent of the Trustee and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the holders.
(e) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee or the Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article VI (subject to this Section 11.9); provided, however, that unless and until the Collateral Agent has received any such request, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.
(f) The Bank of New York Mellon Trust Company, N.A. and its Affiliates (and any successor Collateral Agent and its Affiliates) may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, underwriting or other business with the Borrower, any Guarantor Company and their Affiliates the Note Guarantors as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative AgentTrustee. The Administrative Agent Trustee and the Lenders Holders acknowledge that, pursuant to such activities, the Collateral Agent The Bank of New York Mellon Trust Company, N.A. or its Affiliates (and any successor Collateral Agent and its Affiliates) may receive information regarding the Borrower, any Guarantor or its Affiliates Company and the Note Guarantors (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such AffiliateCompany and the Guarantors) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent Trustee or the Lendersholders. Nothing herein shall impose or imply any obligation on the part of the The Bank of New York Mellon Trust Company, N.A. (or any successor Collateral Agent Agent) to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever may resign at any time upon thirty (30) days’ prior written notice to the Administrative Agent or any Trustee and the Company, such resignation to be effective upon the acceptance of the Lenders a successor agent to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the its appointment as Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to . If the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.resigns
Appears in 1 contract
Sources: Indenture (Libbey Inc)
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders holders by acceptance of the Securities hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements Agreement and the Administrative Agent Trustee and each of the Lenders holders by acceptance of the Securities hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Documents and the Intercreditor AgreementsAgreement, together with such powers as are reasonably incidental thereto. The Collateral Agent agrees to act as such on the express conditions contained in this Section 11.10. The provisions of this Section 12.11 11.10 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, holders or the Borrower nor Company or any of the Note Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0311.3. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Documents and the Intercreditor AgreementsAgreement, the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative AgentTrustee, any Lender holder or the Company or any Note Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this AgreementIndenture, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this AgreementIndenture, the Collateral Documents and the Intercreditor AgreementsAgreement, including the exercise of remedies pursuant to Article VIIIVI, and any action so taken or not taken shall be deemed consented to by the Administrative Agent Trustee and the Lendersholders.
(b) The Collateral Agent may execute any of its duties under this Indenture, the Collateral Documents or the Intercreditor Agreement by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent, employee or attorney-in-fact that it selects as long as such selection was made without negligence or willful misconduct.
(c) None of the Collateral Agent or any of its Affiliates agents or employees shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Company or any Note Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any AgreementIndenture, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreementor any other Indenture, the Collateral Documents or the Intercreditor AgreementsAgreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreementor any other Indenture and the Collateral Documents, the Collateral Documents or the Intercreditor AgreementsAgreement, or for any failure of the Borrower, Company or any Note Guarantor or any other party to this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements Agreement to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates agents or employees shall be under any obligation to the Administrative Agent Trustee or any Lender holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreementor any other Indenture, the Collateral Documents or the Intercreditor Agreements Agreement or to inspect the properties, books, books or records of the Borrower, any Guarantor Company or any Note Guarantor’s Affiliates.
(cd) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Company or any Note Guarantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall be fully justified in failing or refusing to take any action under this or any other Indenture, the Collateral Documents or the Intercreditor Agreement unless it shall first receive such advice or concurrence of the Trustee as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this or any other Indenture, the Collateral Documents or the Intercreditor Agreement in accordance with a request or consent of the Trustee and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the holders.
(e) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee or the Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article VI (subject to Section 11.10); provided, however, that unless and until the Collateral Agent has received any such request, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.
(f) The Bank of New York Mellon Trust Company, N.A. and its Affiliates (and any successor Collateral Agent and its Affiliates) may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, underwriting or other business with the Borrower, any Guarantor Company and their Affiliates the Note Guarantors as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative AgentTrustee. The Administrative Agent Trustee and the Lenders Holders acknowledge that, pursuant to such activities, the Collateral Agent The Bank of New York Mellon Trust Company, N.A. or its Affiliates (and any successor Collateral Agent and its Affiliates) may receive information regarding the Borrower, any Guarantor or its Affiliates Company and the Note Guarantors (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such AffiliateCompany and the Guarantors) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent Trustee or the Lendersholders. Nothing herein shall impose or imply any obligation on the part of the The Bank of New York Mellon Trust Company, N.A. (or any successor Collateral Agent Agent) to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever may resign at any time upon thirty (30) days’ prior written notice to the Administrative Agent or any Trustee and the Company, such resignation to be effective upon the acceptance of the Lenders a successor agent to assure that its appointment as Collateral Agent. If the Collateral exists or is owned by Agent resigns under this Indenture, the Borrower or any Guarantor or is cared forTrustee, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien consent of the Company (which shall not be unreasonably withheld and security interest which shall not be required during a continuing Event of Default), shall appoint a successor Collateral Agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Documents has been properly and completely listed or delivered, Agent (as stated in the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty notice of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretoresignation), the Collateral Agent may act in any manner it may deem appropriateappoint, in its sole discretion given after consulting with the Collateral Agent’s own interest Trustee, subject to the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the Collateral and that notice of resignation), the Collateral Agent shall have no other duty or liability whatsoever be entitled to petition at the Administrative Agent or any Lender as to any expense of the foregoing.
(h) No provision Company a court of this Agreement, competent jurisdiction to appoint a successor. Upon the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the retiring Collateral Agent) if it , and the term “Collateral Agent” shall have reasonable grounds for believing that repayment of mean such funds is not assured to it.
(i) The successor notes collateral agent, and the retiring Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powersAgent’s appointment, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except powers and duties as the Collateral Agent may agree in writing with shall be terminated. After the Borrower retiring Collateral Agent’s resignation hereunder, the provisions of this Section 11.10 (and money held in trust by the Collateral Agent need not be segregated from other funds except Section 11.12) shall continue to the extent required by law), (iii) the Collateral Agent may consult with counsel of inure to its selection benefit and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the retiring Collateral Agent shall not by reason of such resignation be construed deemed to impose duties be released from liability as to act.
(j) Neither any actions taken or omitted to be taken by it while it was the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionunder this Indenture.
Appears in 1 contract
Sources: Indenture (Libbey Inc)
Collateral Agent. (a) The Administrative Agent Issuer, the Grantor and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture and the Security Documents, the Collateral Documents and Issuer, the Intercreditor Agreements and the Administrative Agent Grantor and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents, and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture and the Security Documents, and consents and agrees to the terms of each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. In addition, by acceptance of the Notes, each Holder will be deemed to have, (1) irrevocably appointed JPMorgan Chase Bank, N.A., as Collateral Agent to act as its collateral agent under the Security Documents, and any other relevant documents to which the Collateral Documents Agent is a party, and (2) irrevocably authorized the Intercreditor AgreementsCollateral Agent to (i) perform the duties and exercise the rights, powers, and discretions that are specifically given to it under the Security Documents, or other documents to which the Collateral Agent is a party, together with such powers as are reasonably any other incidental theretorights, power and discretions and (ii) execute each document expressed to be executed by Collateral Agent on its behalf. The Collateral Agent agrees to act as such on the express conditions contained in this Section 12.7. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Section 12.11 are solely for Indenture and the benefit of Security Documents, and the Notes exercise by the Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained or remedies set forth herein other than as expressly provided in Section 12.03and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture and the Security Documents, the duties of the Collateral Documents Agent shall be ministerial and the Intercreditor Agreementsadministrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the Security Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder, the Issuer or any Guarantorthe Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the The Collateral Agent or may perform any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them duties under or in connection with this Agreement Indenture or the transactions contemplated hereby Security Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (except a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for its own gross the negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate misconduct of any of the foregoingreceiver, contained agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliatesgood faith and with due care.
(c) The Collateral Agent shall be entitled to rely, and its Affiliates may make loans toshall be fully protected in relying, issue letters of credit for the account ofupon any writing, accept deposits fromresolution, acquire equity interests in and generally engage in any kind of bankingnotice, trustconsent, financial advisorycertificate, underwritingaffidavit, letter, telegram, facsimile, certification, telephone message, statement, or other business with communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the Borrowerproper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Guarantor Grantor), independent accountants and their Affiliates as though it was not other experts and advisors selected by the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under any obligation to provide such information to the Administrative Agent this Indenture or the Lenders. Nothing herein Security Documents, unless it shall impose first receive such advice or imply any obligation on the part concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Security Documents, in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to advance fundsact pursuant thereto shall be binding upon all of the Holders.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements[Reserved].
(e) The Administrative Collateral Agent agrees that it shall not (and shall not be obliged to), and shall not instruct deemed to have knowledge or notice of the Collateral Agent tooccurrence of any Default or Event of Default, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement a Trust Officer of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to received written notice from the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (Trustee or the Administrative Agent) Issuer referring to expend this Indenture, describing such Default or risk its own funds or otherwise incur any financial liability in the performance Event of any Default and stating that such notice is a “notice of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to itdefault.
(i) ” The Collateral Agent (i) shall not take such action with respect to such Default or Event of Default as may be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust requested by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and Trustee in accordance with Article VI or the advice or opinion Holders of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures a majority in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed aggregate principal amount of the likelihood thereof and regardless of the form of actionNotes (subject to this Section 12.7).
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent Pubco and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Agreement, Indenture and the Collateral Documents Documents, and the Intercreditor Agreements and the Administrative Agent Pubco and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, and the Collateral Documents and the Intercreditor Agreements Documents, and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, Indenture and the Collateral Documents Documents, and consents and agrees to the Intercreditor Agreementsterms of each Collateral Document, together as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with such powers as are reasonably incidental theretotheir respective terms. The Collateral Agent agrees to act as such on the express conditions contained in this Section 13.7. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Section 12.11 are solely for Indenture and the benefit of Collateral Documents, and the Notes exercise by the Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained or remedies set forth herein other than as expressly provided in Section 12.03and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture and the Collateral Documents, the duties of the Collateral Documents Agent shall be ministerial and the Intercreditor Agreementsadministrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the Collateral Documents, to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, and the Collateral Documents and the Intercreditor Agreements Documents, or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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.
(b) The Collateral Agent may perform any of its duties under this Indenture, and the Collateral Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. Except The Collateral Agent shall not be responsible for the negligence or misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as expressly otherwise provided long as such selection was made in good faith and with due care.
(c) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to Pubco or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under this AgreementIndenture or the Collateral Documents unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Collateral Document in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(d) [Reserved]
(e) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Trust Officer of the Collateral Agent shall have received written notice from the Trustee or Pubco referring to this Indenture, describing such Default or Event of Default and may use its sole discretion stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to exercising such Default or refraining from exercising any discretionary rights Event of Default as may be requested by the Trustee in accordance with Article VI or taking the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.7).
(f) [Reserved].
(g) U.S. Bank Trust Company, National Association shall initially act as Collateral Agent and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or refraining from taking any actions which in the Collateral Documents, neither the Collateral Agent is expressly entitled nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take or assert under this Agreement, any other action whatsoever with regard to the Collateral Documents and the Intercreditor Agreements, including or any part thereof. The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of remedies pursuant to Article VIIIsuch powers, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of neither the Collateral Agent or nor any of its Affiliates officers, directors, employees or agents shall (i) be liable responsible for any action taken act or omitted failure to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (act hereunder, except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(dh) The Collateral Agent is authorized and directed to (i) enter into the Collateral DocumentsDocuments to which it is party, whether executed on or after the Issue Date, (ii) enter into make the Intercreditor Agreements, (iii) representations of the Holders set forth in the Collateral Documents bind the Lenders Holders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements Documents, and (iviii) perform and observe its obligations under the Collateral Documents and the Intercreditor AgreementsDocuments.
(ei) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this AgreementIndenture, except for any such proceeds or payments received by the Administrative Agent Trustee from the Collateral Agent pursuant to the terms of this AgreementIndenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent Trustee pursuant to Article VIIIVI, the Administrative Agent Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral AgentAgent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Collateral Documents.
(fj) The Administrative Collateral Agent is each LenderHolder’s agent for the purpose of perfecting the LendersHolders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code Code, can be perfected only by possessionpossession or control. Should the Administrative Agent Trustee obtain possession or control of any such Collateral, upon request from the BorrowerPubco, the Administrative Agent Trustee shall notify the Collateral Agent thereof, and, thereof and promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(gk) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent Trustee or any of the Lenders Holders to assure that the Collateral exists or is owned by the Borrower or any Guarantor Grantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any GuarantorGrantor’s property constituting collateral Collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this AgreementIndenture, any Collateral Document or other than pursuant to the Intercreditor Agreements, it being understood and agreed that in respect instructions of the Collateral, Holders of a majority in aggregate principal amount of the Notes or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest as otherwise provided in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoingDocuments.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 1 contract
Sources: Indenture (ProCap BTC, LLC)
Collateral Agent. (a) The Administrative Collateral Agent and each has been appointed to act as Collateral Agent hereunder by Lenders and, by their acceptance of the Lenders hereby designates benefits hereof, the other Secured Parties. The Collateral Agent shall be obligated, and appoints shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement and the Credit Agreement; provided, the Collateral Agent shall, after payment in full of all Obligations under the Credit Agreement and the other Credit Documents, exercise, or refrain from exercising, any remedies provided for herein in accordance with the instructions of the holders of a majority of the aggregate notional amount (or, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements (Requisite Lenders or, if applicable, such holders being referred to herein as “Requisite Obligees”). In furtherance of the foregoing provisions of this Section, each Secured Party, by its agent acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Secured Parties in accordance with the terms of this Section. The Collateral Agent shall at all times be the same Person that is Administrative Agent under the Credit Agreement. Written notice of resignation by Administrative Agent pursuant to terms of the Credit Agreement shall also constitute notice of resignation as the Collateral Agent under this Agreement; removal of Administrative Agent pursuant to the terms of the Credit Agreement shall also constitute removal as the Collateral Agent under this Agreement; and appointment of a successor Administrative Agent pursuant to the terms of the Credit Agreement shall also constitute appointment of a successor Collateral Agent under this Agreement. Upon the acceptance of any appointment as Administrative Agent under the terms of the Credit Agreement by a successor Administrative Agent, that successor Administrative Agent shall thereby also be deemed the successor Collateral Agent and such successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Collateral Agent under this Agreement, and the retiring or removed Collateral Agent under this Agreement shall promptly (i) transfer to such successor Collateral Agent all sums, Securities and other items of Collateral held hereunder, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Collateral Agent under this Agreement, and (ii) execute and deliver to such successor Collateral Agent or otherwise authorize the filing of such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor Collateral Agent of the security interests created hereunder, whereupon such retiring or removed Collateral Agent shall be discharged from its duties and obligations under this Agreement. After any retiring or removed Collateral Agent’s resignation or removal hereunder as the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under Agent, the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and Agreement shall inure to exercise such powers and perform such duties its benefit as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them it under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by while it was the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliateshereunder.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent and each of Each Secured Party hereby appoints ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP (the Lenders hereby designates and appoints “Collateral Agent”) as the Collateral Agent as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent hereunder and each of the Lenders hereby irrevocably Secured Party authorizes the Collateral Agent to take such action as agent on its behalf under the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers under this Agreement and perform such duties the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents under such agreements and the Intercreditor Agreements, together with to exercise such powers as are reasonably incidental thereto. The provisions Without limiting the foregoing, each Secured Party hereby authorizes the Collateral Agent to execute and deliver, and to perform its obligations under, each of this Section 12.11 are solely the documents to which the Collateral Agent is a party relating to security for the benefit obligations under the Notes, to exercise all rights, powers and remedies that the Collateral Agent may have under such Transaction Documents and, in the case of the Notes Collateral Agent and none of Transaction Documents, to act as agent for the Administrative Agent, Secured Parties under such Transaction Documents.
(b) As to any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as matters not expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in for by this Agreement, the Collateral Documents Agreement and the Intercreditor Agreementsother document relating thereto (including enforcement or collection), the Collateral Agent shall not have be required to exercise any duties discretion or responsibilities hereunder nor take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Secured Parties, and such instructions shall be binding upon all Secured Parties; provided, however, that the Collateral Agent have shall not be required to take any action that (i) the Collateral Agent in good faith believes exposes it to personal liability unless the Collateral Agent receives an indemnification satisfactory to it from the Secured Parties with respect to such action or (ii) is contrary to this Agreement or applicable law. The Collateral Agent agrees to give to each Secured Party prompt notice of each notice given to it by the Company pursuant to the terms of this Agreement or the other Transaction Documents. If the Collateral Agent receives conflicting instructions from the Secured Parties it will not be required to act until it receives instructions from the Secured Parties holding a majority of the Notes (calculated in dollar amounts rather than noteholders).
(c) In performing its functions and duties hereunder and under the Transaction Documents and the other documents required to be executed or delivered in connection therewith, the Collateral Agent is acting solely on behalf of the Secured Parties and its duties are entirely administrative in nature. The Collateral Agent does not assume and shall not be deemed to have assumed any fiduciary relationship with obligation other than as expressly set forth herein, in the Administrative Agent, Transaction Documents and any Lender other documents required to be executed or delivered in connection therewith related hereto or any Guarantorother relationship as the agent, and no implied covenants, functions, responsibilities, duties, obligations fiduciary or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements trustee of or otherwise exist against the Collateral Agent. Without limiting the generality for any Secured Party or holder of the foregoing sentence, the use of the term “agent” in any other obligation under this Agreement with reference to or the Notes. The Collateral Agent is not intended to connote may perform any fiduciary of its duties under any Transaction Document by or other implied (through its agents 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lendersemployees.
(bd) None of the Collateral Agent Agent, any of its affiliates or any of its Affiliates their respective directors, officers, agents or employees shall (i) be liable for any action taken or omitted to be taken by any of it, him, her or them under or in connection with this Agreement or the transactions contemplated hereby (other Transaction Documents, except for its its, his, her or their own gross negligence or willful misconduct.
(e) Each Secured Party acknowledges that it shall, independently and without reliance upon the Collateral Agent or under or any other Secured Party conduct its own independent investigation of the financial condition and affairs of the Company and its Subsidiaries in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any issuance of the Administrative Securities. Each Secured Party also acknowledges that it shall, independently and without reliance upon the Collateral Agent or any Lender for any recitalother Secured Party and based on such documents and information as it shall deem appropriate at the time, statementcontinue to make its own credit decisions in taking or not taking action under this Agreement and other Transaction Documents. For avoidance of doubt, representation, warranty, covenant or agreement made by each Secured Party represents that it has had no contact with the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by Collateral Agent; that the Collateral Agent has had no role in the negotiation or preparation of the Transaction Documents and was contacted after such negotiations and documents were finalized for the purpose of serving solely in the administrative role of Collateral Agent under or in connection with, this Agreement, .
(f) Each Secured Party agrees to indemnify the Collateral Documents Agent and each of its affiliates, and each of their respective directors, officers, employees, agents and advisors (to the extent not reimbursed by the Borrower), from any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses and disbursements (including fees, expenses and disbursements of financial and legal advisors) of any kind or the Intercreditor Agreementsnature whatsoever that may be imposed on, incurred by, or the validityasserted against, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under affiliates, directors, officers, employees, agents and advisors in any obligation way relating to or arising out of this Agreement or the Administrative Agent other Transaction Documents or any Lender to ascertain action taken or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not omitted by the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantordocument related thereto; provided, including the commencement of any legal or equitable proceedingshowever, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent that no Secured Party shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except be liable for any portion of such proceeds liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or payments received by the Administrative Agent disbursements resulting from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver or such Collateral to the Collateral Agent Affiliate’s gross negligence or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructionswillful misconduct.
(g) The Collateral Agent may resign at any time by giving written notice thereof to the Secured Parties and the Company. Upon any such resignation, the Secured Parties shall have no obligation whatsoever the right to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the appoint a successor Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the . If no successor Collateral Agent shall have no been so appointed by the Secured Parties, and shall have accepted such appointment, within 30 days after the retiring Collateral Agent’s giving of notice of resignation, then the retiring Collateral Agent may, on behalf of the Secured Parties, appoint a successor Collateral Agent, selected from among the Secured Parties. Upon the acceptance of any appointment as Collateral Agent by a successor Collateral Agent, such successor Collateral Agent shall succeed to, and become vested with, all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations under this Agreement, the Transaction Documents and any other duty documents required to be executed or liability whatsoever delivered in connection therewith. Prior to any retiring Collateral Agent’s resignation hereunder as Collateral Agent, the retiring Collateral Agent shall take such action as may be reasonably necessary to assign to the Administrative successor Collateral Agent or any Lender its rights as Collateral Agent under the Transaction Documents. After such resignation, the retiring Collateral Agent shall continue to have the benefit of this Agreement as to any of actions taken or omitted to be taken by it while it was Collateral Agent under this Agreement, the foregoingTransaction Documents and any other documents required to be executed or delivered in connection therewith.
(h) No provision of this Agreement, the Intercreditor Agreements or Each Secured Party agrees that any Collateral Document shall require action taken by the Collateral Agent (in accordance with the provisions of this Agreement or of the other document relating thereto, and the exercise by the Collateral Agent or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case Secured Parties of the Collateral Agent) if it powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall have reasonable grounds for believing that repayment be authorized and binding upon all of such funds is not assured to itthe Secured Parties.
(i) The Each of the Secured Parties hereby directs, in accordance with the terms hereof, the Collateral Agent to release (or in the case of clause (ii) below, release or subordinate) any Lien held by the Collateral Agent for the benefit of the Secured Parties against any of the following: (i) all of the Collateral upon payment and satisfaction in full of all obligations under the Notes and all other obligations under the Transaction Documents that the Collateral Agent has been notified in writing are then due and payable; (ii) any assets that are subject to a Lien permitted by Section 3.2); and (iii) any part of the Collateral sold or disposed of by the Company or any Subsidiary if such sale or disposition is permitted by this Agreement and the Notes (or permitted pursuant to a waiver or consent of a transaction otherwise prohibited by this Agreement and the Notes). Each of the Secured Parties hereby directs the Collateral Agent to execute and deliver or file such termination and partial release statements and do such other things as are necessary to release Liens to be released pursuant to this Section 7.14 promptly upon the effectiveness of any such release.
(j) The contact information for the Collateral Agent is: ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇. The fax number (▇▇▇) ▇▇▇-▇▇▇▇. The telephone number is (▇▇▇) ▇▇▇-▇▇▇▇.
(k) The Collateral Agent:
(i) shall not be responsible in any manner for the validity, correctness or sufficiency of any document or instrument received by or made available to it, in its capacity as Collateral Agent hereunder.
(ii) shall be entitled to act upon any written certificate, statement, notice, demand, request, consent, agreement or other instrument whatever, not only in reliance upon its due execution and the validity and effectiveness of its provisions, but also as to the accuracy and completeness of any information therein contained, which the Collateral Agent shall in good faith believe to be genuine and to have been signed or presented by any authorized person.
(iii) shall be entitled to request and receive from any party hereto such documents in addition to those provided for herein as the Collateral Agent may deem necessary to resolve any questions of fact involved in the administration of its duties hereunder.
(iv) may, at the expense of the remaining parties, consult independent counsel of its choice in respect to any question relating to its duties or responsibilities under this Agreement, and shall not be liable for any action it takes taken or omits to take omitted in good faith which it reasonably believes on advice of such counsel.
(v) shall be under no obligation to be authorized advance any monetary sum in connection with the maintenance or within its rights administration of this Agreement, to institute or powersdefend any action, suit or legal proceeding in connection herewith, or for to take any error of judgment made in good faith by a Responsible Officer, unless it is proved that other action likely to involve the Collateral Agent was grossly negligent in ascertaining expense, unless first indemnified by the pertinent facts, remaining parties to the Collateral Agent’s satisfaction.
(iivi) shall not be liable for interest on bound by any money received amendment to this Agreement or by any other such amendment or agreement unless the same shall have been executed by the Collateral Agent.
(vii) shall have only such duties and responsibilities as are expressly set forth in this Agreement in the performance of its obligations hereunder.
(viii) shall be indemnified and held harmless by the remaining parties against any and all liabilities incurred by it hereunder (including all costs, expenses and fees incurred in defending any legal action or administrative proceeding or in resisting any claim), except for those resulting from its own willful misconduct or gross negligence.
(ix) may, if it becomes uncertain concerning its rights and responsibilities with respect to its duties or if it receives instructions with respect to the Collateral that it believes to be in conflict with this Agreement or is advised that a dispute has arisen with respect to its duties under this Agreement, without liability, refrain from taking any action until it is directed otherwise in a writing signed by all of the Secured Parties or by an order of a court of competent jurisdiction. The Collateral Agent is not obligated to institute or defend any legal proceedings, although it may, in its sole discretion and at the remaining parties’ expense, institute or defend such proceedings (including proceedings seeking a declaratory judgment) and join interested parties.
(x) The Collateral Agent will be paid a fee of $3,000 for its agreement to serve as the Collateral Agent may agree in writing with Agent. This fee is payable upon the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel execution of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to actthis Agreement.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent Each Holder by accepting a Note hereby (i) irrevocably appoints (and each of authorizes and directs the Lenders hereby designates and appoints the Trustee to appoint) JPMorgan Chase Bank, N.A. as Collateral Agent to act as its collateral agent for the Holders under this Agreement, the Collateral Documents and any other relevant documents to which the Intercreditor Agreements Collateral Agent is a party, and the Administrative (ii) irrevocably appoints JPMorgan Chase Bank, N.A. as Collateral Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, Indenture and the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, Indenture and the Collateral Documents and Documents. The Collateral Agent agrees to act as such on the Intercreditor Agreements, together with such powers as are reasonably incidental theretoexpress conditions contained in this Section 17.05. The provisions of this Section 12.11 17.05 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower Trustee (except with respect to Section 17.05(s) below) nor any of the Guarantors Holders shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03Article 3 hereof. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provision of this Indenture and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture or the Collateral Documents, the duties of the Collateral Documents Agent shall be ministerial and the Intercreditor Agreementsadministrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the Collateral Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any Guarantorthe Company, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, Indenture or the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) The Collateral Agent may perform any of its duties under this Indenture and the Collateral Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates, (a “Related Person”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Collateral Agent or any of its Affiliates respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Company or any GuarantorAffiliate of the Company, or any officer Officer or Affiliate of any of the foregoingRelated Person thereof, contained in this Indenture, or any Agreementother Security Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, Indenture or the Collateral Documents or the Intercreditor AgreementsDocuments, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, Indenture or the Collateral Documents or the Intercreditor AgreementsDocuments, or for any failure of the Borrower, any Guarantor Company or any other party to this Agreement, Indenture or the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunderthereunder or for the value or sufficiency of any Collateral. None of the Collateral Agent or any of its Affiliates respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement, Indenture or the Collateral Documents or the Intercreditor Agreements Document or to inspect the properties, books, or records of the Borrower, any Guarantor Company or any Guarantor’s of its Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized shall be entitled to rely, and directed shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (i) enter including counsel to the Company), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth Agent shall be fully justified in failing or refusing to take any action under this Indenture or the Collateral Documents unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes or Pari Passu Secured Parties, as may be applicable, as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and the Intercreditor Agreements all liability, loss and (iv) perform and observe its obligations expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Collateral Documents in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes or the Pari Passu Obligations, as may be applicable, and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Intercreditor AgreementsHolders.
(e) The Administrative Collateral Agent agrees that it shall not (and shall not be obliged to)deemed to have knowledge or notice of the occurrence of any Default or Event of Default, and shall not instruct unless an Officer of the Collateral Agent toshall have received written notice from the Trustee or the Company referring to this Indenture, unless specifically requested describing such Default or Event of Default and stating that such notice is a “notice of default” and the Trustee has provided to do so by the Required Lenders, take or cause Collateral Agent a copy of such notice. Subject to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any provisions of the Collateral. If at any time or times Collateral Documents, the Administrative Collateral Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments take such action with respect to the Obligations arising under, such Default or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms Event of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements Default as may be required requested by the Trustee in accordance with Article 6 hereof or the Holders of a majority in aggregate principal amount of the Notes (subject to negotiate this Section 17.05) or the same to the Collateral AgentPari Passu Obligations, as may be applicable.
(f) The Administrative Collateral Agent is each Lendermay resign at any time by written notice to the Trustee and the Company, and the retiring Collateral Agent’s agent for appointment, powers and duties as the purpose of perfecting the Lenders’ security interest in assets whichCollateral Agent hereunder shall be terminated, subject to and in accordance with Article 9 Section 4.15(c) of the Uniform Commercial Code can be perfected only by possession. Should Pledge Agreement and the Administrative Agent obtain possession other provisions of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon Documents. Upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral acceptance of its appointment as successor collateral agent in accordance with the terms of the Collateral Documents, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Collateral Agent, and the term “Collateral Agent” shall mean such successor collateral agent. After the retiring Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretoresignation, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision provisions of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent Section 17.05 (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (iand Section 7.02) shall not be liable for any action it takes or omits continue to take in good faith which it reasonably believes inure to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection benefit and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the retiring Collateral Agent shall not by reason of such resignation be construed deemed to impose duties be released from liability as to act.
(j) Neither any actions taken or omitted to be taken by it while it was the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionunder this Indenture.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent Issuer and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements Agreement and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Documents and the Intercreditor AgreementsAgreement, together and consents and agrees to the terms of the Intercreditor Agreement and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as such powers as are reasonably incidental theretoon the express conditions contained in this Section 12.9. The provisions of this Section 12.11 12.9 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower Holders nor any of the Guarantors Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0312.4. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provision of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Documents and the Intercreditor AgreementsAgreement, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the other Note Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the .
(b) The Collateral Agent shall have and may use perform any of its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert duties under this AgreementIndenture, the Collateral Documents or the Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the Intercreditor Agreementsrespective officers, including the exercise directors, employees, agents, advisors and attorneys-in-fact of remedies pursuant such Person and its Affiliates, (a “Related Person”) and shall be entitled to Article VIIIadvice of counsel concerning all matters pertaining to such duties, and any action so taken or not taken shall be deemed consented entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the Administrative Agent and the Lendersnegligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(bc) None of the Collateral Agent or any of its Affiliates respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or Issuer any Guarantor, or any officer other Grantor or Affiliate of any of the foregoingGrantor, or any Officer or Related Person thereof, contained in this Indenture, or any Agreementother Note Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this AgreementIndenture, the Collateral Documents or the Intercreditor AgreementsAgreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this AgreementIndenture, the Collateral Documents or the Intercreditor AgreementsAgreement, or for any failure of the Borrower, any Guarantor Grantor or any other party to this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements Agreement to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements Agreement or to inspect the properties, books, or records of the Borrower, any Guarantor Grantor or any GuarantorGrantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized shall be entitled to rely, and directed shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (i) enter including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral DocumentsAgent shall be fully justified in failing or refusing to take any action under this Indenture, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and or the Intercreditor Agreements Agreement unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and (iv) perform all liability and observe its obligations expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents and or the Intercreditor AgreementsAgreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e) The Administrative Collateral Agent agrees that it shall not (and shall not be obliged to)deemed to have knowledge or notice of the occurrence of any Default or Event of Default, and shall not instruct unless a Trust Officer of the Collateral Agent toshall have received written notice from the Trustee or the Issuer referring to this Indenture, unless specifically requested to do so by the Required Lenders, take describing such Default or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement Event of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any Default and stating that such notice is a “notice of the Collateral. If at any time or times the Administrative default.” The Collateral Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments take such action with respect to the Obligations arising under, such Default or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms Event of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements Default as may be required requested by the Trustee in accordance with Article VI or the Holders of a majority in aggregate principal amount of the Notes (subject to negotiate the same to the Collateral Agentthis Section 12.9).
(f) The Administrative Collateral Agent is each Lender’s may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possessionto its appointment as Collateral Agent. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify If the Collateral Agent thereofresigns under this Indenture, and, promptly upon the Collateral Agent’s request therefor Issuer shall deliver such Collateral appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent or otherwise deal with such Collateral (as stated in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any notice of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretoresignation), the Collateral Agent may act in any manner it may deem appropriateappoint, in its sole discretion given after consulting with the Collateral Agent’s own interest Trustee, subject to the consent of the Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the Collateral and that notice of resignation) the Collateral Agent shall have no other duty or liability whatsoever be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the Administrative Agent or any Lender acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to any all the rights, powers and duties of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the retiring Collateral Agent) if it , and the term “Collateral Agent” shall have reasonable grounds for believing that repayment of mean such funds is not assured to it.
(i) The successor collateral agent, and the retiring Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powersAgent’s appointment, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except powers and duties as the Collateral Agent may agree in writing with shall be terminated. After the Borrower retiring Collateral Agent’s resignation hereunder, the provisions of this Section 12.9 (and money held in trust by the Collateral Agent need not be segregated from other funds except Section 7.7) shall continue to the extent required by law), (iii) the Collateral Agent may consult with counsel of inure to its selection benefit and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the retiring Collateral Agent shall not by reason of such resignation be construed deemed to impose duties be released from liability as to act.
(j) Neither any actions taken or omitted to be taken by it while it was the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionunder this Indenture.
Appears in 1 contract
Sources: Indenture (Essar Steel Algoma Inc.)
Collateral Agent. (a) The Administrative Agent and each Notes Collateral will be pledged pursuant to the Security Documents to the Collateral Agent, on behalf of the Lenders hereby designates holders of the Notes and appoints all holders of future Parity Lien Obligations. Each Holder, by its acceptance of any Notes and the Note Guarantees, consents and agrees to the terms of the Security Documents as the same may be in effect or as may be amended from time to time in accordance with their terms and authorizes and directs the Collateral Agent as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements Trustee, as applicable, to become party to and the Administrative Agent perform their respective obligations and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its behalf exercise their respective rights under the provisions of this AgreementSecurity Documents in accordance therewith, to bind the Collateral Documents and Holders on the Intercreditor Agreements terms set forth in the Security Documents, and to exercise such powers execute any and perform such duties as are expressly delegated all documents, amendments, waivers, consents, releases or other instruments required or authorized to be executed by it pursuant to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lendersthereof.
(b) None Subject in all respects to the terms of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Trust Agreement or and the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct)other Security Documents, or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under will hold (directly or in connection withthrough co-trustees or agents), this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure and will be entitled to enforce on behalf of the BorrowerHolders of Notes and the holders of all other Parity Lien Obligations, any Guarantor or any other party to this Agreement, all Liens on the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s AffiliatesNotes Collateral.
(c) The Collateral Agent is authorized and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, empowered to appoint one or other business with the Borrower, any Guarantor and their Affiliates more co-Collateral Agents as though it was not the Collateral Agent hereunder and without notice to deems necessary or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance fundsappropriate.
(d) The In acting as Collateral Agent is authorized and directed to (i) enter into or Co-Collateral Agent, the Collateral DocumentsAgent and each Co-Collateral Agent may rely upon and enforce each and all of the rights, (ii) enter into powers, immunities, indemnities and benefits of the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations Trustee under the Collateral Documents and the Intercreditor AgreementsArticle 7 hereof.
(e) The Administrative Agent agrees that it shall At all times when the Trustee is not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to itself the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same Company will deliver to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose Trustee copies of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral all Security Documents delivered to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any and copies of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available documents delivered to the Collateral Agent pursuant to this Agreement, any Collateral Document or Indenture and the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoingSecurity Documents.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(if) The Collateral Agent (i) shall not may resign or may be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and removed in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to provisions set forth in the Collateral Agent shall not be construed to impose duties to actTrust Agreement.
(jg) Neither This Section 11.01 and the provisions of each Security Document are subject to the terms, conditions and benefits set forth in the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionTrust Agreement.
Appears in 1 contract
Sources: Indenture (Ak Steel Corp)
Collateral Agent. (a) The Administrative Agent and each Each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its collateral agent under this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements and the Administrative Agent Security Documents and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents and to exercise such powers and perform such duties as are expressly required, permitted or delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents Indenture and the Intercreditor AgreementsSecurity Documents, together with such powers as are reasonably incidental thereto. The Collateral Agent agrees to act as such on the express conditions contained in this Section 11.07. The provisions of this Section 12.11 11.07 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, Holders nor the Borrower nor Company or any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0311.03. Notwithstanding Not- withstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents Indenture and the Intercreditor AgreementsSecurity Documents, the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or the Company or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral Agent is shall not intended be construed 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 otherwise provided in this Agreement, the The Collateral Agent may and, upon direction from the Trustee or the requisite Holders as provided hereunder or under a Security Document, shall have and may use its sole discretion with respect to exercising exercise or refraining refrain from exercising any such discretionary rights rights, or taking take or refraining refrain from taking any such actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents Indenture and the Intercreditor AgreementsSecurity Documents, including the exercise of remedies pursuant to Article VIIISix, and any action so taken or not taken shall be deemed consented to by the Administrative Agent Trustee and the LendersHolders.
(b) The Collateral Agent may execute any of its duties under this Indenture and the Security Documents by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Collateral Agent shall not be responsible for the bad faith, negligence or misconduct of any agent, employee or attorney-in-fact that it selects as long as such selection was made with due care.
(c) None of the Collateral Agent or any of its Affiliates agents or employees shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own bad faith, gross negligence or willful misconduct) or under or in connection with any Collateral Security Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own bad faith, gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Company or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this Indenture or any Agreementindenture, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this AgreementIndenture or any other indenture, the Collateral Documents or the Intercreditor AgreementsSecurity Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents Indenture or any other indenture or the Intercreditor AgreementsSecurity Documents, or for any failure of the Borrower, Company or any Guarantor or any other party to this Agreement, the Collateral Documents Indenture or the Intercreditor Agreements Security Documents to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates agents or employees shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement, the Collateral Documents Indenture or any other indenture or the Intercreditor Agreements Security Documents or to inspect the properties, books, books or records of the Borrower, any Guarantor Company or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent (i) enter into shall have received written notice from the Collateral DocumentsTrustee or the Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default” or (ii) enter into a Responsible Officer has actual knowledge of the Intercreditor Agreements, occurrence of such Default or Event of Default. The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article Six (iiisubject to this Section 11.07) bind or the Lenders on the terms Holders as set forth provided in the Collateral Documents Security Documents; provided, however, that unless and the Intercreditor Agreements and (iv) perform and observe its obligations under until the Collateral Documents and Agent has received any such request, the Intercreditor AgreementsCollateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct A resignation or removal of the Collateral Agent to, unless specifically requested to do so by and appointment of a successor Collateral Agent shall become effective only upon the Required Lenders, take or cause to be taken any action to enforce its rights under successor Collateral Agent’s acceptance of appointment as provided in this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the CollateralSection 11.07(e). If The Collateral Agent may resign in writing at any time by so notifying the Company, the Trustee and each trustee, agent or times representative of holders of Permitted Additional Pari Passu Obligations at least 30 days prior to the Administrative proposed date of resignation. The Company may remove the Collateral Agent shall receive if: (i) by paymentthe Collateral Agent is removed as Trustee under this Indenture; (ii) the Collateral Agent (x) fails to meet the requirements for being a Trustee under Section 7.10 (prior to the discharge or defeasance of this Indenture) and (y) following the discharge or defeasance of this Indenture, foreclosurefails to meet the requirements for being the trustee, set-off agent or otherwise, representative of holders of any proceeds of extant Permitted Additional Pari Passu Obligations; (iii) the Collateral Agent is adjudged a bankrupt or any payments an insolvent or an order for relief is entered with respect to the Obligations arising under, Collateral Agent under any Bankruptcy Law; (iv) a custodian or relating to, this Agreement, except public officer takes charge of the Collateral Agent or its property; or (v) the Collateral Agent becomes incapable of acting. If the Collateral Agent resigns or is removed or if a vacancy exists in the office of Collateral Agent for any reason, the Company shall promptly appoint a successor Collateral Agent which complies with the eligibility requirements contained in this Indenture and each indenture, credit agreement or other agreements which any Permitted Additional Pari Passu Obligations (other than Additional Notes) are incurred. If a successor Collateral Agent does not take office within 10 days after the retiring Collateral Agent resigns or is removed, the retiring Collateral Agent, the Company or the holders of at least 10% in principal amount of the then outstanding principal amount of (x) the Notes (other than any Additional Notes except to the extent constituting Permitted Additional Pari Passu Obligations) and (y) Permitted Additional Pari Passu Obligations (to the extent the trustee, agent or representative of holders of such proceeds Permitted Additional Pari Passu Obligations executed a joinder to the Security Agreement) may petition any court of competent jurisdiction for the appointment of a successor Collateral Agent. A successor Collateral Agent shall deliver a written acceptance of its appointment to the retiring Collateral Agent and to the Company. Thereupon, the resignation or payments received removal of the retiring Collateral Agent shall become effective, and the successor Collateral Agent shall have all the rights, powers and the duties of the Collateral Agent under this Indenture and the Security Documents. The successor Collateral Agent shall mail a notice of its succession to the Trustee and each trustee, agent or representative of holders of Permitted Additional Pari Passu Obligations. The retiring Collateral Agent shall promptly transfer all property held by it as Collateral Agent to the Administrative successor Collateral Agent, provided that all sums owing to the Collateral Agent from hereunder have been paid. Notwithstanding replacement of the Collateral Agent pursuant to this Section 11.07(e), the terms Company’s obligations under this Section 11.07 and Section 11.12 shall continue for the benefit of this Agreement, or (ii) payments from the retiring Collateral Agent. If the Collateral Agent in excess resigns or is removed, such resignation or removal will not constitute a resignation or removal of the amount required to be paid to Trustee hereunder (unless the Administrative Agent Trustee resigns or is otherwise removed pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral AgentSection 7.08).
(f) The Administrative Trustee shall initially act as Collateral Agent is each Lender’s agent for and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the purpose of perfecting the Lenders’ security interest in assets whichSecurity Documents, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify neither the Collateral Agent thereofnor any of its officers, anddirectors, promptly employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the Collateral Agent’s request therefor shall deliver such Collateral of any other Person or to take any other action whatsoever with regard to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) any part thereof. The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any be accountable only for amounts that it actually receives as a result of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest exercise of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authoritiessuch powers, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither neither the Collateral Agent nor the Administrative Agent any of its officers, directors, employees or agents shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable responsible for any indirectact or failure to act hereunder, special except for its own willful misconduct, gross negligence or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionbad faith.
Appears in 1 contract
Sources: Indenture (Exide Technologies)
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreement and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Security Documents and the Intercreditor AgreementsAgreement, together with such powers as are reasonably incidental thereto. The Collateral Agent agrees to act as such on the express conditions contained in this Section 10.06. The provisions of this Section 12.11 10.06 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower Holders nor any of the Issuers or Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0310.03. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Security Documents and the Intercreditor AgreementsAgreement, the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative AgentTrustee, any Lender Holder, any Issuer or any GuarantorSubsidiary of the Company, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this AgreementIndenture, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this AgreementIndenture, the Collateral Security Documents and the Intercreditor AgreementsAgreement, including the exercise of remedies pursuant to Article VIIISix, and any action so taken or not taken shall be deemed consented to by the Administrative Agent Trustee and the LendersHolders.
(b) The Collateral Agent may execute any of its duties under this Indenture, the Security Documents or the Intercreditor Agreement by or through agents, employees, attorneys-in-fact or through its related Persons and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent, employee, attorney-in-fact or related Person that it selects as long as such selection was made without gross negligence or willful misconduct.
(c) None of the Collateral Agent or Agent, nor any of its Affiliates respective related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Security Document or the Intercreditor Agreements Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower any Issuer or any Guarantor, or any officer or Affiliate of any of the foregoingrelated Person thereof, contained in this or any AgreementIndenture, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreementor any other Indenture, the Collateral Security Documents or the Intercreditor AgreementsAgreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreementor any other Indenture, the Collateral Security Documents or the Intercreditor AgreementsAgreement, or for any failure of the Borrowerany Issuer, any Guarantor or any other party to this AgreementIndenture, the Collateral Security Documents or the Intercreditor Agreements Agreement to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates respective related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreementor any other Indenture, the Collateral Security Documents or the Intercreditor Agreements Agreement or to inspect the properties, books, or records of the Borrower, any Guarantor Issuer or any Guarantor’s Affiliates.
(cd) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex, or telephone message, statement, or other document or conversation believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to any Issuer or Guarantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall be fully justified in failing or refusing to take any action under this or any other Indenture, the Security Documents or the Intercreditor Agreement unless it shall first receive such advice or concurrence of the Trustee as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this or any other Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request or consent of the Trustee and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee or an Issuer or Guarantor referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article Six (subject to this Section 10.06); provided, however, that unless and until the Collateral Agent has received any such request, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.
(f) U.S. Bank National Association and its respective Affiliates (and any successor Collateral Agent and its affiliates) may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Issuer or Guarantor and their its Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative AgentTrustee. The Administrative Agent Trustee and the Lenders Holders acknowledge that, pursuant to such activities, the U.S. Bank National Association or its respective Affiliates (and any successor Collateral Agent or and its Affiliates affiliates) may receive information regarding the Borrower, any Issuer or Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Issuer, Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent Trustee or the LendersHolders. Nothing herein shall impose or imply any obligation on the part of the U.S. Bank National Association (or any successor Collateral Agent Agent) to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 1 contract
Sources: Indenture (Norcraft Holdings, L.P.)
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Securities hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreement and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Securities hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Security Documents and the Intercreditor AgreementsAgreement, together and consents and agrees to the terms of the Intercreditor Agreement and each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as such powers as are reasonably incidental theretoon the express conditions contained in this Section 11.08. The provisions of this Section 12.11 11.08 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower Holders nor any of the Guarantors Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0311.03. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provision of this Indenture, the Intercreditor Agreement and the Security Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Security Documents and the Intercreditor AgreementsAgreement, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) The Collateral Agent may perform any of its duties under this Indenture, the Security Documents or the Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates, (a “Related Person”) and shall be entitled to advice of counsel of its selection concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Collateral Agent or any of its Affiliates respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Security Document or the Intercreditor Agreements Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Issuer or any Guarantor, or any officer other Grantor or Affiliate of any of the foregoingGrantor, or any Officer or Related Person thereof, contained in this Indenture, or any Agreementother Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this AgreementIndenture, the Collateral Security Documents or the Intercreditor AgreementsAgreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this AgreementIndenture, the Collateral Security Documents or the Intercreditor AgreementsAgreement, or for any failure of the Borrower, any Guarantor Grantor or any other party to this AgreementIndenture, the Collateral Security Documents or the Intercreditor Agreements Agreement to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this AgreementIndenture, the Collateral Security Documents or the Intercreditor Agreements Agreement or to inspect the properties, books, or records of the Borrower, any Guarantor Grantor or any GuarantorGrantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized shall be entitled to rely, and directed shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (i) enter including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral DocumentsAgent shall be fully justified in failing or refusing to take any action under this Indenture, (ii) enter into the Security Documents or the Intercreditor AgreementsAgreement unless it shall first have received indemnity or security satisfactory to it. Whenever reference is made in this Agreement, the Security Documents or the Intercreditor Agreement to any action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (iiior not to be) bind the Lenders on the terms as set forth in suffered or omitted by the Collateral Documents and the Intercreditor Agreements and 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 (ivor not to be made) perform and observe its obligations under by the Collateral Documents Agent, it is understood that in all cases the Collateral Agent shall be fully justified in failing or refusing to take any such action under this Agreement if it shall not have received such advice or concurrence of the Trustee, acting at the direction of the required Holders of the Notes (acting in accordance with the Indenture and other transaction documents, with such direction to be binding upon all of the Intercreditor AgreementsHolders), as it deems appropriate. This provision is intended solely for the benefit of the Collateral Agent and its successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim, or confer any rights or benefits on any party hereto.
(e) The Administrative Collateral Agent agrees that it shall not (and shall not be obliged to)deemed to have knowledge or notice of the occurrence of any Default or Event of Default, and shall not instruct unless a Responsible Officer of the Collateral Agent toshall have received written notice from the Trustee or the Issuer referring to this Indenture, unless specifically requested to do so by the Required Lenders, take describing such Default or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement Event of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any Default and stating that such notice is a “notice of the Collateral. If at any time or times the Administrative default.” The Collateral Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments take such action with respect to the Obligations arising under, such Default or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms Event of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements Default as may be required requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Securities (subject to negotiate the same to the Collateral Agentthis Section 11.08).
(f) The Administrative Collateral Agent is each Lender’s may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possessionto its appointment as Collateral Agent. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify If the Collateral Agent thereofresigns under this Indenture, and, promptly upon the Collateral Agent’s request therefor Issuer shall deliver such Collateral appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent or otherwise deal with such Collateral (as stated in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any notice of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretoresignation), the Collateral Agent may act in any manner it may deem appropriateappoint, in its sole discretion given after consulting with the Collateral Agent’s own interest Trustee, subject to the consent of the Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the Collateral and that notice of resignation) the Collateral Agent shall have no other duty or liability whatsoever be entitled to petition a court of competent jurisdiction to appoint a successor, at the Administrative Agent or any Lender as to any expense of the foregoing.
(h) No provision of this Agreement, Issuer. Upon the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the retiring Collateral Agent) if it , and the term “Collateral Agent” shall have reasonable grounds for believing that repayment of mean such funds is not assured to it.
(i) The successor collateral agent, and the retiring Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powersAgent’s appointment, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except powers and duties as the Collateral Agent may agree in writing with shall be terminated. After the Borrower retiring Collateral Agent’s resignation hereunder, the provisions of this Section 11.08 (and money held in trust by the Collateral Agent need not be segregated from other funds except Section 7.7) shall continue to the extent required by law), (iii) the Collateral Agent may consult with counsel of inure to its selection benefit and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the retiring Collateral Agent shall not by reason of such resignation be construed deemed to impose duties be released from liability as to act.
(j) Neither any actions taken or omitted to be taken by it while it was the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionunder this Indenture.
Appears in 1 contract
Sources: Indenture (Scientific Games Corp)
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent The Bank of New York Mellon Trust Company, N.A., as its agent under this Agreement, Indenture and the Collateral Security Documents and the Intercreditor Agreements and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent The Bank of New York Mellon Trust Company, N.A. to take such action on its behalf under the provisions of this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents and to exercise such rights, powers and discretions and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents Indenture and the Intercreditor AgreementsSecurity Documents, together with such powers as are reasonably incidental thereto. The Collateral Agent agrees to act as such on the express conditions contained in this . The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, Holders nor the Borrower nor Company or any of the Subsidiary Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03this and in . Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents Indenture and the Intercreditor AgreementsSecurity Documents, the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or the Company or any Subsidiary Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents or otherwise exist against the Collateral AgentAgent other than as a “representative” as such term is used in Section 9-102(a)(72)(E) of the Uniform Commercial Code. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 1 contract
Sources: Indenture (Oppenheimer Holdings Inc)
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements, together and consents and agrees to the terms of the Intercreditor Agreements and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as such powers as are reasonably incidental theretoon the express conditions contained in this Section 12.9. The provisions of this Section 12.11 12.9 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower Holders nor any of the Guarantors Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0312.4. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provision of this Indenture, the Intercreditor Agreements and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the .
(b) The Collateral Agent shall have and may use perform any of its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert duties under this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the Intercreditor Agreementsrespective officers, including the exercise directors, employees, agents, advisors and attorneys-in-fact of remedies pursuant such Person and its Affiliates, (a “Related Person”) and shall be entitled to Article VIIIadvice of counsel concerning all matters pertaining to such duties, and any action so taken or not taken shall be deemed consented entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the Administrative Agent and the Lendersnegligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(bc) None of the Collateral Agent or any of its Affiliates respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Issuer, the Co-Issuer or any Guarantor, or any officer other Grantor or Affiliate of any of the foregoingGrantor, or any Officer or Related Person thereof, contained in this Indenture, or any Agreementother Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor Grantor or any other party to this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor Grantor or any GuarantorGrantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized shall be entitled to rely, and directed shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (i) enter including, without limitation, counsel to the Issuers or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral DocumentsAgent shall be fully justified in failing or refusing to take any action under this Indenture, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and (iv) perform all liability and observe its obligations expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents and or the Intercreditor AgreementsAgreements in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e) The Administrative Collateral Agent agrees that it shall not (and shall not be obliged to)deemed to have knowledge or notice of the occurrence of any Default or Event of Default, and shall not instruct unless a Trust Officer of the Collateral Agent toshall have received written notice from the Trustee or the Issuers referring to this Indenture, unless specifically requested to do so by the Required Lenders, take describing such Default or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement Event of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any Default and stating that such notice is a “notice of the Collateral. If at any time or times the Administrative default.” The Collateral Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments take such action with respect to the Obligations arising under, such Default or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms Event of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements Default as may be required requested by the Trustee in accordance with Article VI or the Holders of a majority in aggregate principal amount of the Notes (subject to negotiate the same to the Collateral Agentthis Section 12.9).
(f) The Administrative Collateral Agent is each Lender’s may resign at any time by notice to the Trustee and the Issuers, such resignation to be effective upon the acceptance of a successor agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possessionto its appointment as Collateral Agent. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify If the Collateral Agent thereofresigns under this Indenture, and, promptly upon the Collateral Agent’s request therefor Issuers shall deliver such Collateral appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent or otherwise deal with such Collateral (as stated in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any notice of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretoresignation), the Collateral Agent may act in any manner it may deem appropriateappoint, in its sole discretion given after consulting with the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever Trustee, subject to the Administrative Agent or any Lender as to any consent of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.the
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreement and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Security Documents and the Intercreditor AgreementsAgreement, together with such powers as are reasonably incidental thereto. The Collateral Agent agrees to act as such on the express conditions contained in this Section 10.06. The provisions of this Section 12.11 10.06 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower Holders nor any of the Issuers or Subsidiary Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0310.03. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Security Documents and the Intercreditor AgreementsAgreement, the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative AgentTrustee, any Lender Holder, any Issuer or any GuarantorSubsidiary of the Company, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this AgreementIndenture, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this AgreementIndenture, the Collateral Security Documents and the Intercreditor AgreementsAgreement, including the exercise of remedies pursuant to Article VIII6, and any action so taken or not taken shall be deemed consented to by the Administrative Agent Trustee and the LendersHolders.
(b) The Collateral Agent may execute any of its duties under this Indenture, the Security Documents or the Intercreditor Agreement by or through agents, employees, attorneys-in-fact or through its Related Persons and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made without gross negligence or willful misconduct
(c) None of the Collateral Agent or Agent, any of its Affiliates respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Security Document or the Intercreditor Agreements Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower any Issuer or any Subsidiary Guarantor, or any officer or Affiliate of any of the foregoingRelated Person thereof, contained in this or any AgreementIndenture, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreementor any other Indenture, the Collateral Security Documents or the Intercreditor AgreementsAgreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreementor any other Indenture, the Collateral Security Documents or the Intercreditor AgreementsAgreement, or for any failure of the Borrowerany Issuer, any Subsidiary Guarantor or any other party to this AgreementIndenture, the Collateral Security Documents or the Intercreditor Agreements Agreement to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreementor any other Indenture, the Collateral Security Documents or the Intercreditor Agreements Agreement or to inspect the properties, books, or records of the Borrower, any Guarantor Issuer or any Subsidiary Guarantor’s Affiliates.
(cd) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex, or telephone message, statement, or other document or conversation believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to any Issuer or Subsidiary Guarantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall be fully justified in failing or refusing to take any action under this or any other Indenture, the Security Documents or the Intercreditor Agreement unless it shall first receive such advice or concurrence of the Trustee as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this or any other Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request or consent of the Trustee and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee or an Issuer or Subsidiary Guarantor referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 (subject to this Section 10.11); provided, however, that unless and until the Collateral Agent has received any such request, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.
(f) Deutsche Bank Trust Company Americas and its respective Affiliates (and any successor Collateral Agent and its affiliates) may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Issuer or Subsidiary Guarantor and their its Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative AgentTrustee. The Administrative Agent Trustee and the Lenders Holders acknowledge that, pursuant to such activities, the Deutsche Bank Trust Company Americas or its respective Affiliates (and any successor Collateral Agent or and its Affiliates affiliates) may receive information regarding the Borrower, any Issuer or Subsidiary Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Issuer, Subsidiary Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent Trustee or the LendersHolders. Nothing herein shall impose or imply any obligation on the part of the Deutsche Bank Trust Company Americas (or any successor Collateral Agent Agent) to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever may resign at any time upon thirty (30) days prior written notice to the Administrative Agent or any Trustee and the Issuers and the Guarantors, such resignation to be effective upon the acceptance of the Lenders a successor agent to assure that its appointment as Collateral Agent. If the Collateral exists or is owned by Agent resigns under this Indenture, the Borrower or any Guarantor or is cared forTrustee, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien consent of the Issuer (which shall not be unreasonably withheld and security interest which shall not be required during a continuing Event of Default), shall appoint a successor Collateral Agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Documents has been properly and completely listed or delivered, Agent (as stated in the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty notice of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretoresignation), the Collateral Agent may act in any manner it may deem appropriateappoint, in its sole discretion given after consulting with the Collateral Agent’s own interest Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Issuers pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the Collateral and that notice of resignation) the Collateral Agent shall have no other duty or liability whatsoever be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the Administrative Agent or any Lender acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to any all the rights, powers and duties of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the retiring Collateral Agent) if it , and the term “Collateral Agent” shall have reasonable grounds for believing that repayment of mean such funds is not assured to it.
(i) The successor collateral agent, and the retiring Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powersAgent’s appointment, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except powers and duties as the Collateral Agent may agree in writing with shall be terminated. After the Borrower retiring Collateral Agent’s resignation hereunder, the provisions of this Section 10.06 (and money held in trust by the Collateral Agent need not be segregated from other funds except Section 10.7) shall continue to the extent required by law), (iii) the Collateral Agent may consult with counsel of inure to its selection benefit and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the retiring Collateral Agent shall not by reason of such resignation be construed deemed to impose duties be released from liability as to act.
(j) Neither any actions taken or omitted to be taken by it while it was the Collateral Agent under this Indenture. The Trustee shall initially act as Collateral Agent and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreement, neither the Collateral Agent nor the Administrative Agent any of its respective officers, directors, employees or agents or other Related Persons shall be liable for delays failure to demand, collect or failures realize upon any of the Collateral or for any delay in performance resulting from acts beyond its controldoing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. Such acts The Collateral Agent shall include but not be limited to acts accountable only for amounts that it actually receives as a result of Godthe exercise of such powers, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither and neither the Collateral Agent nor the Administrative Agent any of its officers, directors, employees or agents shall be liable responsible for any indirectact or failure to act hereunder, special except for its own willful misconduct, gross negligence or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionbad faith.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent and each Notes Collateral will be pledged pursuant to the Security Documents to the Collateral Agent, on behalf of the Lenders hereby designates holders of the Notes and appoints all holders of future Parity Lien Obligations. Each Holder, by its acceptance of any Notes and the Note Guarantees, consents and agrees to the terms of the Security Documents as the same may be in effect or as may be amended from time to time in accordance with their terms and authorizes and directs the Collateral Agent as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements Trustee, as applicable, to enter into and the Administrative Agent perform their respective obligations and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its behalf exercise their respective rights under the provisions of this AgreementSecurity Documents in accordance therewith, to bind the Collateral Documents and Holders on the Intercreditor Agreements terms set forth in the Security Documents, and to exercise such powers execute any and perform such duties as are expressly delegated all documents, amendments, waivers, consents, releases or other instruments required or authorized to be executed by it pursuant to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lendersthereof.
(b) None Subject in all respects to the terms of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Trust Agreement or and the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct)other Security Documents, or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under will hold (directly or in connection withthrough co-trustees or agents), this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure and will be entitled to enforce on behalf of the BorrowerHolders of Notes and the holders of all other Parity Lien Obligations, any Guarantor or any other party to this Agreement, all Liens on the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s AffiliatesNotes Collateral.
(c) The Collateral Agent is authorized and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, empowered to appoint one or other business with the Borrower, any Guarantor and their Affiliates more co-Collateral Agents as though it was not the Collateral Agent hereunder and without notice to deems necessary or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance fundsappropriate.
(d) The In acting as Collateral Agent is authorized and directed to (i) enter into or Co-Collateral Agent, the Collateral DocumentsAgent and each Co-Collateral Agent may rely upon and enforce each and all of the rights, (ii) enter into powers, immunities, indemnities and benefits of the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations Trustee under the Collateral Documents and the Intercreditor AgreementsArticle 7 hereof.
(e) The Administrative Agent agrees that it shall At all times when the Trustee is not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to itself the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same Company will deliver to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose Trustee copies of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral all Security Documents delivered to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any and copies of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available documents delivered to the Collateral Agent pursuant to this Agreement, any Collateral Document or Indenture and the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoingSecurity Documents.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(if) The Collateral Agent (i) shall not may resign or may be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and removed in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to provisions set forth in the Collateral Agent shall not be construed to impose duties to actTrust Agreement.
(jg) Neither This Section 11.01 and the provisions of each Security Document are subject to the terms, conditions and benefits set forth in the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionTrust Agreement.
Appears in 1 contract
Sources: Indenture (Ak Steel Holding Corp)
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints acknowledge the Company’s appointment of the Collateral Agent as its the Trustee’s and the Holders’ collateral agent under this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents, and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes authorize the Collateral Agent to take such action on its their behalf under the provisions of this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents Indenture and the Intercreditor AgreementsSecurity Documents, together with such powers as are reasonably incidental thereto. The Collateral Agent agrees to act as such on the express conditions contained in this Section 11.07. The provisions of this Section 12.11 11.07 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the LendersHolders, the Borrower nor Company or any of the Guarantors Domestic Subsidiaries shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03herein. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents Indenture and the Intercreditor AgreementsSecurity Documents, the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the Security Documents, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or the Company or any GuarantorDomestic Subsidiary, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral Agent is shall not intended be construed to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable lawApplicable 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 otherwise provided in this AgreementIndenture and the Security Documents, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents Indenture and the Intercreditor AgreementsSecurity Documents, including the exercise of remedies pursuant to Article VIII6, and any action so taken or not taken shall be deemed consented to by the Administrative Agent Trustee and the LendersHolders.
(b) The Collateral Agent may execute any of its duties under this Indenture and the Security Documents by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and the written advice of such counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent, employee or attorney-in-fact that it selects as long as such selection was made without negligence or willful misconduct.
(c) None of the Collateral Agent or any of its Affiliates agents or employees shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Security Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Company or any Guarantor, Guarantor contained in this Indenture or any officer or Affiliate of any of the foregoing, contained in this or any AgreementSecurity Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, Indenture or any of the Collateral Documents or the Intercreditor AgreementsSecurity Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, Indenture or any of the Collateral Documents or the Intercreditor AgreementsSecurity Documents, or for any failure of the Borrower, Company or any Guarantor or any other party to this Agreement, Indenture or any of the Collateral Security Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates agents or employees shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement, Indenture or any of the Collateral Security Documents or the Intercreditor Agreements or to inspect the properties, books, books or records of the Borrower, any Guarantor Company or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance fundsPledgor.
(d) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee or the Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee acting in accordance with Article 6 (subject to this Section 11.07); provided, however, that unless and until the Collateral Agent has received any such request, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.
(e) The Collateral Agent may resign at any time by so notifying the Company and the Trustee in writing at least thirty (30) days prior to the proposed date of resignation, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral Agent resigns under this Indenture, the Trustee, subject to the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), shall appoint a successor Collateral Agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent (as stated in the notice of resignation), the Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor Collateral Agent, which may be the same Person as the Trustee. If no successor Collateral Agent is appointed and consented to by the Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Collateral Agent, the Company or the Holders of at least 10% in principal amount of the then outstanding principal amount of the Notes shall be entitled to petition at the expense of the Company a court of competent jurisdiction to appoint a successor Collateral Agent. A successor Collateral Agent shall deliver a written acceptance of its appointment to the retiring Collateral Agent and to the Company. Thereupon, the resignation of the retiring Collateral Agent shall become effective, and the successor Collateral Agent shall have all the rights, powers and the duties of the Collateral Agent under this Indenture and the Security Documents. The successor Collateral Agent shall mail a notice of its succession to the Trustee. The retiring Collateral Agent shall promptly transfer all property held by it as Collateral Agent to the successor Collateral Agent, provided that all sums owing to the retiring Collateral Agent hereunder have been paid. Notwithstanding the replacement of the Collateral Agent pursuant to this Section 11.07(e), the Company’s obligations under this Section 11.07 and Section 11.12 shall continue for the benefit of the retiring Collateral Agent.
(f) Except as otherwise explicitly provided herein or in the Security Documents, neither the Collateral Agent nor any of its officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. 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.
(g) The Trustee is authorized and directed by the Holders and the Holders by acquiring the Notes are deemed to have authorized the Trustee, as applicable, upon the expiration of the Escrow Period, to (i) enter into the Collateral DocumentsSecurity Documents to which it is a party, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders Holders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and such Security Documents, (iviii) perform and observe its obligations under the Collateral such Security Documents and the Intercreditor Agreements.
(eiv) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct cause the Collateral Agent to, unless specifically requested to do so enter into and perform its obligations under the Security Documents. The Collateral Agent is authorized and directed by the Required Lenders, take or cause Trustee and the Holders and the Holders by acquiring the Notes are deemed to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to have authorized the Collateral Agent, upon the expiration of the Escrow Period, to (i) enter into the Security Documents to which it is a party, (ii) bind the Trustee and the Holders on the terms as set forth in kind, such Security Documents and with (iii) perform and observe its obligations under such endorsements as may be required to negotiate the same to the Collateral AgentSecurity Documents.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(gh) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent Trustee or any of the Lenders Holders to assure that the Collateral exists or is owned by the Borrower or any Guarantor Company and the other Pledgors or is cared for, protected, protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or of the Borrower or any GuarantorGrantor’s property constituting collateral Collateral intended to be subject to the Lien and security interest of the Collateral Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which that it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officeran authorized officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower Company (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), and (iii) the Collateral Agent may consult with counsel of its selection and the written advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counselreliance thereon. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither It is hereby understood that the Dutch Parallel Debt (as defined in the Dutch Pledge Agreement) has been included in the Dutch Pledge Agreement for the purpose of determining the secured obligations in any Collateral that is governed by Dutch law, and in relation to such Dutch Parallel Debt:
(i) the Collateral Agent nor shall act in its own name and not as agent of any Secured Party (but always for the Administrative benefit of the Secured Parties in accordance with the provisions of this Indenture, the Notes, the Intercreditor Agreement and the Security Documents);
(ii) the rights, powers and authorities vested in the Collateral Agent pursuant to this Indenture, the Notes, the Intercreditor Agreement, the Security Documents, the Subsidiary Guarantees and any other agreements or instruments required to be executed pursuant to the terms thereof are subject to any restrictions imposed by mandatory Dutch law; and
(iii) the Collateral Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited entitled to acts accept the Dutch Parallel Debt on behalf of Godeach of the Secured Parties, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after notwithstanding the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither foregoing.
(k) If the Collateral Agent nor resigns in accordance with this Section 11.07, EOC shall execute such documents and take such other action as is necessary or (in the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed opinion of the likelihood thereof and regardless Collateral Agent) desirable in connection with the substitution, in accordance with Applicable Law, of the form successor Collateral Agent as creditor of actionthe Dutch Parallel Debt and as beneficiary of the Dutch Pledge Agreement securing the Dutch Parallel Debt.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent and each of the Lenders hereby designates and appoints the Collateral Agent Trustee shall initially act as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the authorized to appoint co-Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” Agents as necessary in this Agreement with reference to the Collateral 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 partiesits sole discretion. Except as expressly otherwise explicitly provided herein, in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Security Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, neither the Collateral Documents Agent nor any of its respective officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Intercreditor Agreements, Collateral or for any failure of the Borrower, any Guarantor delay in doing so or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to sell or otherwise dispose of any Collateral upon the Administrative Agent request of any other Person or to take any other action whatsoever with regard to the Collateral or any Lender to ascertain or to inquire part thereof. The Collateral Agent shall be accountable only for amounts that it actually receives as to a result of the observance or performance 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 or under the agreements contained inSecurity Documents, except for its own willful misconduct, negligence or conditions of, this Agreement, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliatesbad faith.
(cb) The Trustee, as Collateral Agent and its Affiliates may make loans toAgent, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Security Documents, (ii) enter into the Intercreditor AgreementsAgreement, (iii) bind the Lenders Holders on the terms as set forth in the Collateral Security Documents and the Intercreditor Agreements Agreement and (iv) perform and observe its obligations under the Collateral Security Documents and the Intercreditor AgreementsAgreement.
(c) If the Company or any Restricted Subsidiary (i) Incurs Priority Lien Obligations at any time when no Intercreditor Agreement is in effect or at any time when Indebtedness constituting Priority Lien 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.
(d) The Company or any Restricted Subsidiary may from time to time, subject to the limitations contained in this Indenture, designate additional obligations that are, or are to be, secured by Liens on the Collateral as Other Pari Passu Lien Obligations by delivering to the Collateral Agent, the Trustee and each Representative of holders of Other Pari Passu Lien Obligations an Officer's Certificate:
(i) describing the obligations being designated as Other Pari Passu Lien Obligations, and including a statement of the maximum aggregate outstanding principal amount of such obligations;
(ii) listing any Other Pari Passu Lien Obligations Documents under which such Other Pari Passu Lien Obligations are issued or incurred and the security documents securing such Other Pari Passu Lien Obligations, and attaching copies of such Other Pari Passu Lien Obligations Documents and security documents;
(iii) appointing the Collateral Agent as collateral agent with respect to such Other Pari Passu Lien Obligations, and identifying any Representative of the holders of such Other Pari Passu Lien Obligations;
(iv) certifying that the incurrence of such Other Pari Passu Lien Obligations, the creation of the Liens securing such Other Pari Passu Lien Obligations and the designation of such Other Pari Passu Lien Obligations as Other Pari Passu Lien Obligations hereunder do not violate this Indenture; and
(v) requesting the Collateral Agent to enter into an intercreditor agreement with and for the benefit of the holders of such Other Pari Passu Lien Obligations providing for the matters set forth in Section 11.08(e), (which agreement shall contain terms no less favorable, to the extent applicable, to the Holders than the terms of the Intercreditor Agreement referred to in clause (a) of the definition thereof) and otherwise in form and substance reasonably satisfactory to the Collateral Agent. Notwithstanding any other provision contained in this Section 11.08(d) or elsewhere in this Agreement, no obligation shall constitute Other Pari Passu Lien Obligations if the incurrence of such obligation, the creation of the Liens securing such obligation or the designation of such obligation as Other Pari Passu Lien Obligations hereunder would violate or result in a default under this Indenture.
(e) The Administrative Agent agrees that Upon receipt of an Officer's Certificate specified in Section 11.08(d) requesting it shall not (and shall not be obliged to)to enter into an intercreditor agreement, and shall not instruct the Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, unless specifically requested bind the Holders on the terms set forth therein, and perform and observe its obligations thereunder. Such intercreditor agreement shall provide that (x) notwithstanding the time, order or method of creation, attachment or perfection of such Liens, the Liens on the Collateral securing the Other Pari Passu Lien Obligations and the Liens on the Collateral securing the Securities and the Subsidiary Guarantees shall rank pari passu (except to do so the extent such Liens are not then perfected, are voidable as a preference under the United States Bankruptcy Code or are held by the Required Lenders, take or cause a court of competent jurisdiction to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive unenforceable); (iy) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any provisions of the Lenders to assure that Indenture and the Collateral exists or is owned Security Documents, will determine the time and method by which all such Liens will be concurrently enforced (unless the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether on all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral under the Security Documents has have been properly theretofore released pursuant to Section 11.03 or 11.11 hereof); and completely listed (z) upon foreclosure, sale or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at other disposition in liquidation of all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect part of the Collateral, the holders of the Other Pari Passu Lien Obligations and the Holders shall share in the resulting income pertaining thereto and the proceeds thereof (after payment of all costs and expenses incurred by the Trustee or any act, omission, or event related thereto, the Collateral Agent may act in connection with the collection of proceeds or sale of any manner it may deem appropriateCollateral or otherwise in connection with this Indenture, in its sole discretion given the Collateral Agent’s own interest in Security Documents and the Collateral Intercreditor Agreement, including all court costs and that the fees and expenses of their agents and legal counsel, the repayment of all advances made by the Trustee or the Collateral Agent shall have no other duty or liability whatsoever to on behalf of the Administrative Agent Company or any Lender as to Subsidiary Guarantor and any other costs or expenses incurred in connection with the exercise of any rights or remedy of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (Holders or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case holders of the Collateral AgentOther Pari Passu Lien Obligations) if it shall have reasonable grounds for believing that repayment pro rata based on the respective amounts of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection Guaranteed Obligations and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to actOther Pari Passu Lien Obligations then outstanding held thereby.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 1 contract
Sources: Indenture (Land O Lakes Inc)
Collateral Agent. (a) The Administrative Agent and each of the Lenders hereby designates and appoints the Collateral Agent Trustee shall initially act as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the authorized to appoint co-Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” Agents as necessary in this Agreement with reference to the Collateral 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 partiesits sole discretion. Except as expressly otherwise explicitly provided in this Agreementthe Indenture, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Security Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, neither the Collateral Documents Agent nor any of its respective officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Intercreditor Agreements, Collateral or for any failure of the Borrower, any Guarantor delay in doing so or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to sell or otherwise dispose of any Collateral upon the Administrative Agent request of any other Person or to take any other action whatsoever with regard to the Collateral or any Lender to ascertain or to inquire part thereof. The Collateral Agent shall be accountable only for amounts that it actually receives as to a result of the observance or performance 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 under the agreements contained in, or conditions of, this Agreement, the Collateral Documents Indenture or the Intercreditor Agreements Security Documents, except for its own willful misconduct, negligence or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliatesbad faith.
(cb) The Trustee, as Collateral Agent and its Affiliates may make loans toAgent, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Security Documents, (ii) enter into the Intercreditor AgreementsAgreement, (iii) bind the Lenders Holders on the terms as set forth in the Collateral Security Documents and the Intercreditor Agreements Agreement and (iv) perform and observe its obligations under the Collateral Security Documents and the Intercreditor AgreementsAgreement.
(ec) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct If the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower Company or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Subsidiary (i) incurs Priority Lien on, or otherwise enforce any security interest in, any of the Collateral. If Obligations at any time when no Intercreditor Agreement is in effect or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, at any proceeds of Collateral or any payments with respect time when Priority Lien Obligations entitled to the Obligations arising underbenefit of an existing Intercreditor Agreement are concurrently retired, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or and (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral delivers to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien an Officers’ Certificate so stating and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to requesting the Collateral Agent pursuant to this Agreement, any Collateral Document enter into an Intercreditor Agreement in favor of a designated agent or representative for the Intercreditor Agreements, it being understood and agreed that in respect holders of the Collateral, or any act, omission, or event related theretoPriority Lien Obligations so incurred, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral shall (and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(his hereby authorized and directed to) No provision of this enter into such Intercreditor Agreement, bind the Intercreditor Agreements or any Collateral Document shall require Holders on the Collateral Agent (or the Administrative Agent) to expend or risk terms set forth therein, and perform and observe its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to itobligations thereunder.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 1 contract
Sources: First Supplemental Indenture (Flotek Industries Inc/Cn/)
Collateral Agent. (a) The Administrative Collateral Agent has been appointed to act as Collateral Agent hereunder and each under the Intercreditor Agreement by Lenders and, by their acceptance of the Lenders hereby designates and appoints the Collateral Agent as its agent under this Agreementbenefits hereof, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent other Secured Parties. Subject to take such action on its behalf under the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall be obligated, and shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and may use its sole discretion to take or refrain from taking any action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement, the Credit Agreement and the Intercreditor Agreement; provided, the Collateral Agent shall, after payment in full of all Obligations under the Credit Agreement and the other Credit Documents, exercise, or refrain from exercising, any remedies provided for herein in accordance with the instructions of the holders of a majority of the aggregate notional amount (or, with respect to exercising or refraining from exercising any discretionary Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. In furtherance of the foregoing provisions of this Section, each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Secured Party that all rights or taking or refraining from taking any actions which and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Secured Parties in accordance with the terms of this Section. Collateral Agent shall at all times be the same Person that is expressly entitled Administrative Agent under the Credit Agreement. Written notice of resignation by Administrative Agent pursuant to take subsection 9.7 of the Credit Agreement shall also constitute notice of resignation as Collateral Agent under this Agreement; removal of Administrative Agent pursuant to Section 9.7 of the Credit Agreement shall also constitute removal of Collateral Agent under this Agreement and appointment of a successor Administrative Agent pursuant to subsection 9.7 of the Credit Agreement shall also constitute appointment of a successor Collateral Agent under this Agreement. Upon the acceptance of any appointment as Administrative Agent under subsection 9.7 of the Credit Agreement by a successor Administrative Agent, that successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent under this Agreement. Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, that successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or assert removed Collateral Agent under this Agreement, the Collateral Documents and the Intercreditor Agreementsretiring or removed Collateral Agent under this Agreement shall promptly (i) transfer to such successor Collateral Agent all sums, including Securities and other items of Collateral held hereunder, together with all records and other documents necessary or appropriate in connection with the exercise performance of remedies pursuant to Article VIIIthe duties of the successor Collateral Agent under this Agreement, and any action so taken or not taken shall be deemed consented (ii) execute and deliver to by the Administrative Agent and the Lenders.
(b) None of the such successor Collateral Agent or otherwise authorize the filing of such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor Collateral Agent of the security interests created hereunder, whereupon such retiring or removed Collateral Agent shall be discharged from its duties and obligations under this Agreement. After any retiring or removed Collateral Agent's resignation or removal hereunder as the Collateral Agent, the provisions of this Agreement shall inure to its Affiliates shall (i) be liable for benefit as to any action actions taken or omitted to be taken by any of them it under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by while it was the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliateshereunder.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent and each of the Lenders hereby designates and appoints the Collateral Agent as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever all the rights and protections provided in the Security Documents. If and to the Administrative extent permitted under the Security Documents, the Collateral Agent shall be authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary and appropriate.
(b) Subject to Section 7.01 hereof, neither the Trustee, Collateral Agent nor Paying Agent, Registrar and Transfer Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the First Lien Obligations, or any of defect or deficiency as to any such matters.
(c) Subject to the Lenders Security Documents, the Trustee shall direct the Collateral Agent from time to assure time. Subject to the Security Documents, except as directed by the Trustee as required or permitted by this Indenture and any other representatives, the Holders acknowledge that the Collateral exists Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any other Person;
(ii) to foreclose upon or otherwise enforce any Lien securing the First Lien Obligations; or
(iii) to take any other action whatsoever with regard to any or all of the Liens securing the First Lien Obligations, Security Documents or Collateral.
(d) If the Issuer (i) incurs ABL Obligations at any time when no Intercreditor Agreement is owned by in effect or at any time when Indebtedness constituting ABL Obligations entitled to the Borrower benefit of the Intercreditor Agreements is concurrently retired, and (ii) directs the Trustee to deliver to the Collateral Agent an Officer’s Certificate so stating and requesting the Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreements in effect on the Issue Date) in favor of a designated agent or any Guarantor or is cared forrepresentative for the holders of the ABL Obligations so incurred, protected, or insured or has been encumbered, or the Holders acknowledge that the Collateral Agent 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.
(e) Unless otherwise provided in the Security Documents, in acting as Collateral Agent or co-Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether the Collateral Agent and each co-Collateral Agent may rely upon and enforce each and all or rights and benefits of the Borrower or any Guarantor’s property constituting collateral intended to Trustee under Article 7 hereof and shall be subject to the Lien and security interest duties of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or Trustee thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers applicable to the Collateral Agent shall not be construed to impose duties to actactions of a collateral agent under the Security Documents.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 1 contract
Sources: Indenture (Toys R Us Inc)
Collateral Agent. (a) The Administrative By their acceptance of the Notes, the Holders hereby designate and appoint the Trustee to serve as Collateral Agent and as their agent under this Indenture and the Security Documents and the Trustee and each of the Lenders hereby designates and appoints the Collateral Agent as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each Holders by acceptance of the Lenders Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture and the Security Documents, and consents and agrees to the terms of each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Trustee acknowledges that the Collateral Documents and Agent agrees to act as such on the Intercreditor Agreements, together with such powers as are reasonably incidental theretoexpress conditions contained in this Section 11.09. The provisions of this Section 12.11 11.09 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower Holders nor any of the Guarantors Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0311.03. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture and the Security Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein or therein, shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture and the Security Documents, the duties of the Collateral Documents Agent shall be ministerial and the Intercreditor Agreementsadministrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, Indenture or the Collateral Security Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) The Collateral Agent may perform any of its duties under this Indenture or the Security Documents by or through receivers, agents, employees, attorneys-in-fact or through its Related Persons and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Collateral Agent or any of its Affiliates Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Security Document or the Intercreditor Agreements or the transactions contemplated thereby (except for to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Issuer or any Guarantor, or any officer Grantor or Affiliate of any of the foregoingGrantor, or any Officer or Related Persons thereof, contained in this Indenture, or any Agreementother Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents Indenture or the Intercreditor Agreements, Security Documents or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents Indenture or the Intercreditor AgreementsSecurity Documents, or for any failure of the Borrower, any Guarantor Grantor or any other party to this Agreement, the Collateral Documents Indenture or the Intercreditor Agreements Security Documents to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement, the Collateral Documents Indenture or the Intercreditor Agreements Security Documents or to inspect the properties, books, or records of the Borrower, any Guarantor Grantor or any GuarantorGrantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed shall be entitled to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to)rely, and shall not instruct the Collateral Agent tobe fully protected in relying, unless specifically requested upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to do so be genuine and correct and to have been signed, sent, or made by the Required Lendersproper Person or Persons, take or cause and upon advice and statements of legal counsel (including, without limitation, counsel to be taken any action to enforce its rights under this Agreement or against the Borrower Issuer or any Guarantorother Grantor), including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) independent accountants and other experts and advisors selected by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed bound to impose duties make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to act.
(j) Neither take action under the Notes Documents unless it shall first receive such advice or concurrence from the party or parties entitled to give instructions to the Collateral Agent nor under the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts terms of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of actionAgreement.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Indenture, the Security Agreement, the Collateral Security Documents and the Intercreditor Agreements Agreement and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Security Agreement, the Collateral Security Documents and the Intercreditor Agreements Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture, the Security Agreement, the Collateral Security Documents and the Intercreditor AgreementsAgreement, together with such powers as are reasonably incidental thereto. The Collateral Agent agrees to act as such on the express conditions contained in this Section 10.11. The provisions of this Section 12.11 10.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower Holders nor any of the Guarantors Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0310.03. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Security Agreement, the Collateral Security Documents and the Intercreditor AgreementsAgreement, the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Agreement, the Collateral Security Documents and the Intercreditor Agreements Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this AgreementIndenture, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Indenture, the Security Agreement, the Collateral Security Documents and the Intercreditor AgreementsAgreement, including the exercise of remedies pursuant to Article VIIIVI, and any action so taken or not taken shall be deemed consented to by the Administrative Agent Trustee and the LendersHolders.
(b) The Collateral Agent may execute any of its duties under this Indenture, the Security Documents or the Intercreditor Agreement by or through agents, employees, attorneys-in-fact or through its Related Persons and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made without negligence or willful misconduct.
(c) None of the Collateral Agent or Agent, any of its Affiliates respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with the Security Agreement, any Collateral Security Document or the Intercreditor Agreements Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Issuer or any GuarantorGrantor or Affiliate of any Grantor, or any officer or Affiliate of any of the foregoingRelated Person thereof, contained in this or any AgreementIndenture, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this or any other Indenture, the Security Agreement, the Collateral Security Documents or the Intercreditor AgreementsAgreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this or any other Indenture, the Security Agreement, the Collateral Security Documents or the Intercreditor AgreementsAgreement, or for any failure of the Borrower, any Guarantor Grantor or any other party to this Indenture, the Security Agreement, the Collateral Security Documents or the Intercreditor Agreements Agreement to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this or any other Indenture, the Security Agreement, the Collateral Security Documents or the Intercreditor Agreements Agreement or to inspect the properties, books, or records of the Borrower, any Guarantor Grantor or any GuarantorGrantor’s Affiliates.
(cd) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex, or telephone message, statement, or other document or conversation believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to any Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall be fully justified in failing or refusing to take any action under this or any other Indenture, the Security Documents or the Intercreditor Agreement unless it shall first receive such advice or concurrence of the Trustee as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this or any other Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request or consent of the Trustee and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee or a Grantor referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article VI (subject to Section 10.11); provided, however, that unless and until the Collateral Agent has received any such request, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.
(f) U.S. Bank National Association and its respective Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor Grantor and their its Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative AgentTrustee. The Administrative Agent Trustee and the Lenders Holders acknowledge that, pursuant to such activities, the Collateral Agent U.S. Bank National Association or its respective Affiliates may receive information regarding the Borrower, any Guarantor Grantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor Grantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent Trustee or the LendersHolders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent U.S. Bank National Association to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 1 contract
Sources: Indenture (Broan-NuTone LLC)
Collateral Agent. (a) The Administrative Collateral Agent shall initially act as collateral agent and each of shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Lenders hereby designates Security Documents and appoints the Junior Priority Intercreditor Agreements, neither the Collateral Agent as nor any of its agent under this Agreementrespective officers, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby irrevocably authorizes the Collateral Agent directors, employees or agents shall be liable for failure to take such action on its behalf under the provisions of this Agreementdemand, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, collect or realize upon any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor delay in doing so or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to sell or otherwise dispose of any Collateral upon the Administrative Agent request of any other Person or to take any other action whatsoever with regard to the Collateral or any Lender to ascertain or to inquire part thereof. The Collateral Agent shall be accountable only for amounts that it actually receives as to a result of the observance or performance exercise of such powers, and neither the Collateral Agent nor any of the agreements contained inits officers, directors, employees or conditions ofagents shall be responsible for any act or failure to act hereunder, this Agreementexcept for its own willful misconduct, the Collateral Documents gross negligence or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliatesbad faith.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(db) The Collateral Agent is authorized and directed to (i) enter into the Collateral DocumentsAgreement and any other Security Documents as of the Issue Date, and thereafter, any amendments, supplements, joinders or modifications thereto in accordance with the terms hereof, (iiii)(x) as of the Issue Date, enter into the Senior Secured Intercreditor AgreementsAgreement and a joinder to the Second Lien Intercreditor Agreement and (y) after the Issue Date, enter into any amendments, supplements, joinders or other modifications to each applicable Junior Priority Intercreditor Agreement in accordance with the terms of such Junior Priority Intercreditor Agreement and the terms hereof, (iii) bind the Lenders Holders on the terms as set forth in the Collateral Documents Security Documents, the Senior Secured Intercreditor Agreement and the Second Lien Intercreditor Agreements Agreement and (iv) perform and observe its obligations under the Collateral Documents Security Documents, the Senior Secured Intercreditor Agreement and the Second Lien Intercreditor AgreementsAgreement.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 1 contract
Sources: Indenture (Hexion Inc.)
Collateral Agent. (a) The Administrative By their acceptance of the Notes, the Holders hereby designate and appoint ▇▇▇▇▇ Fargo Bank, National Association to serve as Collateral Agent and each of the Lenders hereby designates and appoints the Collateral Agent as its their collateral agent under this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreement, and agree not to assert any claim (including as a result of any conflict of interest) against the Collateral Agent arising from its role as Collateral Agent under the Note Documents, so long as it is acting in accordance with the terms of such Note Documents. Each of the Holders by acceptance of the Notes and the Administrative Agent and each of the Lenders Trustee hereby irrevocably authorizes the Collateral Agent to take such action on its their behalf under the provisions of this AgreementIndenture, the Collateral Security Documents and the Intercreditor Agreements Agreement, and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Security Documents and the Intercreditor AgreementsAgreement, together and consents and agrees to the terms of the Intercreditor Agreement, and each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. ▇▇▇▇▇ Fargo Bank, National Association hereby agrees to serve as Collateral Agent under the Security Documents and the Intercreditor Agreement, and acknowledges that the Collateral Agent agrees to act as such powers as are reasonably incidental theretoon the express conditions contained in this Section 13.09. The provisions of this Section 12.11 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower Holders nor any of the Guarantors Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0313.04. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Security Documents and the Intercreditor Agreement, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture, the Collateral Security Documents and the Intercreditor AgreementsAgreement, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the other Note Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder, any Grantor or any Guarantorother Person, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents or the Intercreditor Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable lawApplicable 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) The Collateral Agent may perform any of its duties under this Indenture, the Security Documents or the Intercreditor Agreement, by or through receivers, agents, employees, attorneys-in-fact or through its officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Collateral Agent or any of its Affiliates Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Security Document or the Intercreditor Agreements Agreement, or the transactions contemplated thereby (except for to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Company, the Issuers or any Guarantor, or any officer Grantor or Affiliate of any of the foregoingGrantor, or any Officer or Related Persons thereof, contained in this Indenture, or any Agreementother Note Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by by, the Collateral Agent under or in connection with, this AgreementIndenture, the Collateral Security Documents or the Intercreditor AgreementsAgreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this AgreementIndenture, the Collateral Security Documents or the Intercreditor AgreementsAgreement, or for any failure of the Borrower, any Guarantor Grantor or any other party to this AgreementIndenture, the Collateral Security Documents or the Intercreditor Agreements Agreement, to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this AgreementIndenture, the Collateral Security Documents or the Intercreditor Agreements Agreement, or to inspect the properties, books, or records of the Borrower, any Guarantor Grantor or any GuarantorGrantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuers or any Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreement, unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Secured Obligations then outstanding, the applicable “Authorized Representative” under the Intercreditor Agreement (if other than the Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Secured Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreement, in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Secured Obligations then outstanding, the applicable “Authorized Representative” under the Intercreditor Agreement (if other than the Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Secured Obligations (if applicable).
(e) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreement).
(f) The Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral Agent resigns under this Indenture or the Intercreditor Agreement, the Issuers shall appoint a successor Collateral Agent. If no successor Collateral Agent is appointed prior to the intended effective date of the resignation of the Collateral Agent (as stated in the notice of resignation), the Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor Collateral Agent. If no successor Collateral Agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor Collateral Agent hereunder, such successor Collateral Agent shall succeed to all the rights, powers and duties of the retiring Collateral Agent, and the term “Collateral Agent” or “Collateral Agent” (as applicable) in the Note Documents shall mean such successor Collateral Agent, and the retiring Collateral Agent’s appointment, powers and duties as the Collateral Agent shall be terminated. After the retiring Collateral Agent’s resignation hereunder, the provisions of this Section 13.09 (and Section 7.07) shall continue to inure to its benefit and the retiring Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Collateral Agent under this Indenture or the Intercreditor Agreement.
(g) The Collateral Agent shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Neither the Collateral Agent nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable to any Grantor or any Noteholder Secured Party for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. 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, attorneys, representatives or agents shall be responsible for any act or failure to act hereunder, except to the extent such act is found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct.
(h) By their acceptance of the Notes hereunder, the Collateral Agent is authorized and directed by the Holders to (i) enter into the Collateral DocumentsSecurity Documents to which it is party, whether executed on or after the Issue Date, (ii) enter into the Intercreditor AgreementsAgreement, (iii) bind the Lenders Holders on the terms as set forth in the Collateral Security Documents and the Intercreditor Agreements and Agreement, (iv) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreement, (v) perform and observe its obligations under the Collateral Security Documents and the Intercreditor AgreementsAgreement and (vi) release any Collateral in accordance with the terms hereof.
(ei) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this AgreementIndenture, except for any such proceeds or payments received by the Administrative Agent Trustee from the Collateral Agent pursuant to the terms of this AgreementIndenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent Trustee pursuant to Article VIII7, the Administrative Agent Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent, such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreement.
(fj) The Administrative Collateral Agent is each LenderHolder’s agent for the purpose of perfecting the LendersHolders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent Trustee obtain possession of any such Collateral, upon request from the BorrowerIssuer, the Administrative Agent Trustee shall notify the Collateral Agent thereof, and, thereof and promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(gk) The Collateral Agent (and the Trustee) shall have no obligation whatsoever to the Administrative Agent Trustee, any of the Holders, or any of the Lenders Noteholder Secured Parties to assure that the Collateral exists or is owned by the Borrower or any Guarantor Grantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or of the Borrower or any GuarantorGrantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this AgreementIndenture, any Collateral Security Document or the Intercreditor AgreementsAgreement, other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the Notes or if there are Secured Obligations then outstanding, the applicable “Authorized Representative” under the Intercreditor Agreement (if other than the Collateral Agent), or as otherwise provided in the Security Documents or the Intercreditor Agreement, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent Trustee, any Holder, or any Lender Noteholder Secured Party as to any of the foregoing.
(hl) No provision of this Agreement, If the Intercreditor Agreements Issuers or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
Guarantor (i) The Collateral Agent (i) shall not be liable for incurs any action it takes obligations in respect of Secured Obligations at any time when no Intercreditor Agreement is in effect or omits at any time when Indebtedness constituting Pari Passu Indebtedness entitled to take in good faith which it reasonably believes to be authorized or within its rights or powersthe benefit of an existing Intercreditor Agreement is concurrently retired, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, and (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers delivers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.an Officer’s Certificate
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Agreement, Indenture and the Collateral Notes Security Documents and the Intercreditor Agreements and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Notes Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents Indenture and the Intercreditor AgreementsNotes Security Documents, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 11.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, the Borrower Holders nor any of the Guarantors Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.0311.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents Indenture and the Intercreditor AgreementsNotes Security Documents, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or any GuarantorGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Notes Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this AgreementIndenture, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this AgreementIndenture, the Collateral Documents and the Intercreditor AgreementsNotes Security Documents, including the exercise of remedies pursuant to Article VIII6, and any action so taken or not taken shall be deemed consented to by the Administrative Agent Trustee and the LendersHolders.
(b) None of the Collateral Agent or any of its respective Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconductmisconduct as finally adjudicated by a court of competent jurisdiction) or under or in connection with any Collateral Notes Security Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Company or any GuarantorGrantor or Affiliate of any Grantor, or any officer or Affiliate of any of the foregoingthereof, contained in this or any AgreementIndenture, any Notes Security Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or any other Indenture or the Intercreditor AgreementsNotes Security Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or any other Indenture or the Intercreditor AgreementsNotes Security Documents, or for any failure of the Borrower, any Guarantor Grantor or any other party to this Agreement, the Collateral Documents Indenture or the Intercreditor Agreements Notes Security Documents to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective Affiliates shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement, the Collateral Documents or any other Indenture or the Intercreditor Agreements Notes Security Documents or to inspect the properties, books, or records of the Borrower, any Guarantor Grantor or any GuarantorGrantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the BorrowerCompany, any Subsidiary Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative AgentTrustee. The Administrative Agent Trustee and the Lenders Holders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor Grantor or its respective Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrowerof, any such Guarantor Grantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent Trustee or the LendersHolders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Notes Security Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders Holders on the terms as set forth in the Collateral Notes Security Documents and the Intercreditor Agreements and (iviii) perform and observe its obligations under the Collateral Documents and the Intercreditor AgreementsNotes Security Documents.
(e) The Administrative Agent Trustee agrees that it shall not (and shall not be obliged obligated to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by a majority of the Required LendersHolders, take or cause to be taken any action to enforce its rights under this Agreement Indenture or against the Borrower or any GuarantorGrantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this AgreementIndenture, except for any such proceeds or payments received by the Administrative Agent Trustee from the Collateral Agent pursuant to the terms of this AgreementIndenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent Trustee pursuant to Article VIII6, the Administrative Agent Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Collateral Agent is each LenderHolder’s agent for the purpose of perfecting the LendersHolders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent Trustee obtain possession of any such Collateral, upon request from the BorrowerCompany, the Administrative Agent Trustee shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. If required for the purpose of meeting the legal requirements of any jurisdiction in which any of the Collateral may at the time be located, subject to the terms of the Notes Security Documents, the Company, the Trustee and the Collateral Agent shall have the power to appoint, and shall take all reasonable action to appoint, one or more Persons approved by the Company to act as co-collateral agent with respect to any such Collateral, with such rights and powers limited to those deemed necessary for the Company, the Trustee or the Collateral Agent to comply with any such legal requirements with respect to such Collateral, and which rights and powers shall not be inconsistent with the provisions of this Indenture.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent Trustee or any of the Lenders Holders to assure that the Collateral exists or is owned by the Borrower or any Guarantor Grantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower Company or any Subsidiary Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Notes Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, Indenture or any Collateral Document or the Intercreditor AgreementsNotes Security Document, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent Trustee or any Lender Holder as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements Indenture or any Collateral Notes Security Document shall require the Collateral Agent (or the Administrative AgentTrustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders Holders (or the Administrative Agent Trustee in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower Company (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), ) and (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent Trustee shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent Trustee shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 1 contract
Sources: Indenture (LSC Communications, Inc.)
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints authorize the appointment of the Collateral Agent as its the Trustee’s and the Holders’ collateral agent under this Agreement, the Collateral Documents Agreements, and the Intercreditor Agreements and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes authorize the Collateral Agent to take such action on its their behalf under the provisions of this the Collateral Agreements, including the Collateral Trust and Intercreditor Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this AgreementIndenture, the Collateral Documents Trust and Intercreditor Agreement and the Intercreditor other Collateral Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents and the Intercreditor Agreements, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative Agent, any Lender or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None The Collateral Agent may resign and its successor appointed in accordance with the terms of the Collateral Agent or any of its Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Trust and Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent or any Lender for any recital, statement, representation, warranty, covenant or agreement made by the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under any obligation to the Administrative Agent or 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, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent Trustee is authorized and directed by the Holders and the Holders by acquiring the Notes are deemed to have authorized the Trustee, as applicable, to (i1) enter into the Collateral DocumentsTrust and Intercreditor Agreement, (ii) enter into the Intercreditor Agreements, (iii2) bind the Lenders Holders on the terms as set forth in the Collateral Documents Trust and the Intercreditor Agreements and Agreement, (iv3) perform and observe its obligations and exercise its rights and powers under the Collateral Documents Trust and Intercreditor Agreement, including entering into amendments permitted by the terms of this Indenture, the Collateral Trust and Intercreditor Agreements.
Agreement or the other Collateral Agreements and (e4) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct cause the Collateral Agent to, unless specifically requested to do so enter into and perform its obligations under the Collateral Agreements. The Collateral Agent is authorized and directed by the Required Lenders, take or cause Trustee and the Holders and the Holders by acquiring the Notes are deemed to be taken any action to enforce its rights under this Agreement or against have authorized the Borrower or any Guarantor, including the commencement of any legal or equitable proceedingsCollateral Agent, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by paymententer into the other Collateral Agreements to which it is a party, foreclosure(ii) bind the Trustee and the Holders on the terms as set forth in such Collateral Agreements and (iii) perform and observe its obligations and exercise its rights and powers under such Collateral Agreements, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received including entering into amendments permitted by the Administrative Agent from terms of this Indenture or the Collateral Agent pursuant Agreements. Each Holder, by its acceptance of a Note, is deemed to have consented and agreed to the terms of this the Collateral Trust and Intercreditor Agreement and each other Collateral Agreement, as originally in effect and as amended, restated, replaced, supplemented or modified from time to time in accordance with its terms or the terms of this Indenture. Each of the Trustee and the Holders by acquiring the Notes is hereby deemed to (iiA) payments from agree that it will be bound by and will take no actions contrary to the provisions of the Collateral Agent in excess Trust and Intercreditor Agreement and the Security Agreement and (B) acknowledge that it has received copies of the amount required to Collateral Trust and Intercreditor Agreement and that the exercise of certain of the Trustee’s rights and remedies hereunder may be paid to the Administrative Agent pursuant to Article VIIIsubject to, and restricted by, the Administrative Agent shall promptly turn the same over to provisions of the Collateral AgentTrust and Intercreditor Agreement. NOTWITHSTANDING ANY OTHER PROVISION CONTAINED IN THIS INDENTURE, in kindIN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THIS INDENTURE AND THE COLLATERAL TRUST AND INTERCREDITOR AGREEMENT, and with such endorsements as may be required to negotiate the same to the Collateral AgentTHE COLLATERAL TRUST AND INTERCREDITOR AGREEMENT, AS APPLICABLE, SHALL CONTROL.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(gd) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent Trustee or any of the Lenders Holders to assure that the Collateral exists or is owned by the Borrower Company or any Guarantor of the Collateral Grantors or is cared for, protected, protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or of the Borrower or any Guarantorapplicable Collateral Grantor’s property constituting collateral Collateral intended to be subject to the Lien and security interest of the Collateral Documents Agreements has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(he) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither . For the avoidance of doubt, nothing herein shall require the Collateral Agent nor to file financing statements or continuation statements, or be responsible for maintaining the Administrative Agent security interests purported to be created by the Collateral Agreements and such responsibility shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed solely that of the likelihood thereof and regardless of the form of actionCompany.
Appears in 1 contract
Sources: Indenture
Collateral Agent. (a) The Administrative Agent and each Each of the Lenders Holders, by acceptance of the Notes, and the Issuer hereby designates and appoints the Collateral Agent as its agent under this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this AgreementIndenture, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, Indenture and the Collateral Documents Documents, and consents and agrees to the Intercreditor Agreementsterms of each Collateral Document, together as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as such powers as are reasonably incidental theretoon the express conditions contained in this Section 12.07. The provisions of this Section 12.11 12.07 are solely for the benefit of the Notes Collateral Agent Agent, and none of the Administrative AgentTrustee, any of the LendersHolders, the Borrower Issuer nor any of the Guarantors shall have any rights as a third third-party beneficiary of any of the provisions contained herein in this Section 12.07 other than as expressly provided in Section 12.03.
(b) Each Holder agrees that any action taken by the Collateral Agent in accordance with the provision of this Indenture and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this AgreementIndenture and the Collateral Documents, the duties of the Collateral Documents Agent shall be ministerial and the Intercreditor Agreementsadministrative in nature, and the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein and in the Collateral Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Administrative AgentTrustee, any Lender Holder, the Issuer or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, Indenture and the Collateral Documents and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 Each Collateral Agent may perform any of its duties under this Indenture or the Collateral Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates, (each, a “Related Person”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as expressly otherwise provided in this Agreement, long as such selection was made with due care.
(c) Neither the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or nor any of its Affiliates Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any either of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Issuer or any Guarantor or Affiliate of any Guarantor, or any officer Officer or Affiliate of any of the foregoingRelated Person thereof, contained in this Indenture, or any AgreementCollateral Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this AgreementIndenture, or the Collateral Documents or the Intercreditor AgreementsDocuments, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, Indenture or the Collateral Documents or the Intercreditor AgreementsDocuments, or for any failure of the Borrower, Issuer or any Guarantor or any other party to this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of Neither the Collateral Agent or nor any of its Affiliates respective Related Persons shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the existence of any Default or Event of Default, the observance or performance of any of the agreements contained in, or conditions of, this AgreementIndenture, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the BorrowerIssuer, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to the terms of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the Collateral Agent shall have no other duty or liability whatsoever to the Administrative Agent or any Lender as to any of the foregoing.
(h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 1 contract
Sources: Indenture (GOL Linhas Aereas S.A.)
Collateral Agent. (a) The Administrative Agent and each of Each Secured Party hereby appoints Cipher Capital Partners LLC (the Lenders hereby designates and appoints "Collateral Agent") as the Collateral Agent as its agent under this Agreement, the Collateral Documents and the Intercreditor Agreements and the Administrative Agent hereunder and each of the Lenders hereby irrevocably Secured Party authorizes the Collateral Agent to take such action as agent on its behalf under the provisions of this Agreement, the Collateral Documents and the Intercreditor Agreements and to exercise such powers under this Agreement and perform such duties the other Transaction Documents as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents under such agreements and the Intercreditor Agreements, together with to exercise such powers as powers^ are reasonably incidental thereto. The provisions Without limiting the foregoing, each Secured Party he||^; authorizes the Collateral Agent to execute and deliver, and to perform its obligations under, each of this Section 12.11 are solely the documents to which the Collateral Agent is a party relating to security for the benefit obligations under the Notes, to exercise all rights, powers and remedies that the Collateral Agent may have under such Transaction Documents and, in the case of the Notes Collateral Agent and none of Transaction Documents, to act as agent for the Administrative Agent, Secured Parties under such Transaction Documents.
(b) As to any of the Lenders, the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as matters not expressly provided in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in for by this Agreement, the Collateral Documents Agreement and the Intercreditor Agreementsother document relating thereto (including enforcement or collection), the Collateral Agent shall not have be required to exercise any duties discretion or responsibilities hereunder nor take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Lenders, and such instructions shall be binding upon all Secured Parties; provided, however, that the Collateral Agent have shall not be required to take any action that (i) the Collateral Agent in good faith believes exposes it to personal liability unless the Collateral Agent receives an indemnification satisfactory to it from the Secured Parties with respect to such action or (ii) is contrary to this Agreement or applicable law. The Collateral Agent agrees to give to each Secured Party prompt notice of (i) each notice given to it by the Company pursuant to the terms of this Agreement or the other Transaction Documents and (ii) the actions taken by the Collateral Agent on behalf of the Secured Party., If the Collateral Agent receives conflicting instructions from the Secured Parties it wilMolftte required to act until it receives instructions from the Secured Parties holding a majority o'Mie Notes (calculated in dollar amounts rather than noteholders).
(c) In performing its functions and duties hereunder and under the Transaction Documents and the other documents required to be executed or delivered in connection therewith, the Collateral Agent is acting solely on behalf of the Secured Parties and its duties are entirely administrative in nature. The Collateral Agent does not assume and shall not be deemed to have assumed any fiduciary relationship with obligation other than as expressly set forth herein, in the Administrative Agent, Transaction Documents and any Lender other documents required to be executed or delivered in connection therewith related hereto or any Guarantorother relationship as the agent, and no implied covenants, functions, responsibilities, duties, obligations fiduciary or liabilities shall be read into this Agreement, the Collateral Documents and the Intercreditor Agreements trustee of or otherwise exist against the Collateral Agent. Without limiting the generality for any Secured Party or holder of the foregoing sentence, the use of the term “agent” in any other obligation under this Agreement with reference to or the Notes. The Collateral Agent is not intended to connote may perform any fiduciary of its duties under any Transaction Document by or other implied (through its agents 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lendersemployees.
(bd) None of the Collateral Agent Agent, any of its affiliates or any of its Affiliates their respective directors, officers, agents or employees shall (i) be liable for any action taken or omitted to be taken by any of it, him, her or them under or in connection with this Agreement or the transactions contemplated hereby (other Transaction Documents, except for its own gross its, his, her or their oifSiigloss negligence or willful misconduct.
(e) Each Secured Party acknowledges that it shall, independently and without reliance upon the Collateral Agent or under or any other Secured Party conduct its own independent investigation of the financial condition and affairs of the Company and its Subsidiaries in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any issuance of the Administrative Securities. Each Secured Party also acknowledges that it shall, independently and without reliance upon the Collateral Agent or any Lender for any recitalother Secured Party and based on such documents and information as it shall deem appropriate at the time, statementcontinue to make its own credit decisions in taking or not taking action under this Agreement and other Transaction Documents. For avoidance of doubt, representation, warranty, covenant or agreement made by each Secured Party represents that it has had no contact with the Borrower or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by Collateral Agent; and acknowledges that the Collateral Agent has had no role in the negotiation or preparation of the Transaction Documents and was contacted after such negotiations and documents were finalized for the purpose of serving solely in the administrative role of Collateral Agent under or in connection with, this Agreement.
(f) Each Secured Party, severally but not jointly and on a pro rata basis, agrees to indemnify the Collateral Documents Agent and each of its affiliates, and each of their respective directors, officers, employees, agents and advisors (to the extent not reimbursed by the Borrower), from any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses and disbursements (including fees, expenses ;and disbursements of financial and legal advisors) of any kind or the Intercreditor Agreementsnature whatsoever Iriatniiy'be imposed oh, incurred by, or the validityasserted against, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall be under affiliates, directors, officers, employees, agents and advisors in any obligation way relating to or arising out of this Agreement or the Administrative Agent other Transaction Documents or any Lender to ascertain action taken or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of the Borrower, any Guarantor or any Guarantor’s Affiliates.
(c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not omitted by the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds.
(d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantordocument related thereto; provided, including the commencement of any legal or equitable proceedingshowever, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Administrative Agent that no Secured Party shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except be liable for any portion of such proceeds liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or payments received by the Administrative Agent disbursements resulting from the Collateral Agent pursuant to the terms of this Agreement, Agent's or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent Affiliate's gross negligence or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructionswillful misconduct.
(g) The Collateral Agent may resign at any time by giving written notice thereof to the Secured Parties and the Company. Upon any such resignation, the Secured Parties shall have no obligation whatsoever the right to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the appoint a successor Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and that the . If no successor Collateral Agent shall have no other duty been so appointed by the Secured Parties, and shall have accepted such appointment, within 30 days after the retiring Collateral Agent's giving of notice of resignation, then the retiring Collateral Agent may, on behalf of the Secured Parties, appoint a successor Collateral Agent, selected from among the Secured Parties. Upon the acceptance of any appointment as Collateral Agent by a successor Collateral Agent, such successor Collateral Agent shall succeed to, and become vested with, all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations under this Agreement, the Transaction Documents andanyittnerdocuments required to be executed or liability whatsoever delivered in connection therewith. Prior to any retiring Collateral Agent's resignation hereunder as Collateral Agent, the retiring Collateral Agent shall take such action as may be reasonably necessary to assign to the Administrative successor Collateral Agent or any Lender its rights as Collateral Agent under the Transaction Documents. After such resignation, the retiring Collateral Agent shall continue to have the benefit of this Agreement as to any of actions taken or omitted to be taken by it while it was Collateral Agent under this Agreement, the foregoingTransaction Documents and any other documents required to be executed or delivered in connection therewith.
(h) No provision of this Agreement, the Intercreditor Agreements or Each Secured Party agrees that any Collateral Document shall require action taken by the Collateral Agent (in accordance with the provisions of this Agreement or of the other document relating thereto, and the exercise by the Collateral Agent or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case Secured Parties of the Collateral Agent) if it powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall have reasonable grounds for believing that repayment be authorized and binding upon all of such funds is not assured to itthe Secured Parties.
(i) The Each of the Secured PartiQfp^by directs, in accordance with the terms hereof, the Collateral Agent to release (or in the case of clause (ii) below, release or subordinate) any Lien held by the Collateral Agent for the benefit of the Secured Parties against any of the following: (i) all of the Collateral upon payment and satisfaction in full of all obligations under the Notes and all other obligations under the Transaction Documents that the Collateral Agent has been notified in writing are then due and payable; (ii) any assets that are subject to a Lien permitted by Section 3.2); and (iii) any part of the Collateral sold or disposed of by the Company or any Subsidiary if such sale or disposition is permitted by this Agreement and the Notes (or permitted pursuant to a waiver or consent of a transaction otherwise prohibited by this Agreement and the Notes). Each of the Secured Parties hereby directs the Collateral Agent to execute and deliver or file such termination and partial release statements and do such other things as are necessary to release Liens to be released pursuant to this Section 7.14 promptly upon the effectiveness of any such release.
(j) The contact information for the Collateral Agent is: Cipher Capital Partners LLC, c/▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Partners, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇. The fax number for Cipher Capital Partners is (▇▇▇) ▇▇▇-▇▇▇▇ and the E-mail address is ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. The telephone number for Cipher Capital Partners is (▇▇▇) ▇▇▇-▇▇▇▇.
(k) The Collateral Agent:
(i) shall not be responsible in any manner for the i validity, correctness or sufficiency of any document or instrument ireceived by or made available to it, in its capacity as Collateral Agent hereunder.
(ii) shall be entitled to act upon any written certificate, statement, notice, demand, request, consent, agreement or other instrument whatever, not only in reliance upon its due execution and the validity and effectiveness of its provisions, but also as to the accuracy and completeness of any information therein contained, which the Collateral Agent shall in good faith believe to be genuine and to have been signed or presented by any authorized person.
(iii) shall be entitled to request and receive from any party hereto such documents in addition to those provided for herein as the Collateral Agent may deem necessary to resolve any questions of fact involveol||it'the\ administration of its duties hereunder.
(iv) may, at the expense of the remaining parties, consult independent counsel of its choice in respect to any question relating to its duties or responsibilities under this Agreement, and shall not be liable for any action it takes taken or omits to take omitted in good faith which it reasonably believes on advice of such counsel.
(v) shall be under no obligation to be authorized advance any monetary sum in connection with the maintenance or within its rights administration of this Agreement, to institute or powersdefend any action, suit or legal proceeding in connection herewith, or for to take any error of judgment made in good faith by a Responsible Officer, unless it is proved that other action likely to involve the Collateral Agent was grossly negligent in ascertaining expense, unless first indemnified by the pertinent facts, remaining parties to the Collateral Agent's satisfaction.
(iivi) shall not be liable bound by any amendment to this Agreement or by any other such amendment or agreement unless the same shall have been executed by the Collateral Agent.
(vii) shall have only such duties and responsibilities as are expressly set forth in this Agreement in the performance of its obligations hereunder.
(viii) acknowledges specifically its obligations under section 6.2(b) above regarding pro rata distributions of the proceeds of any collection or sale of the Collateral, as well as any Collateral consisting of cash.
(ix) may, if it becomes uncertain concerning its rights and responsibilities with respect to its duties or if it receives instructions with respect to the Collateral that it believes to be in conflict with this Agreement or is advised that a dispute has arisen with respect to its duties under this Agreement, without liability, refrain from taking any action until it is directed otherwise in a writing signed by all of the Secured Parties or by an order of a court of competent jurisdiction. The Collateral Agent is not obligated to institute or defend any legal proceedings, although it may, in its sole discretion and at the r^hiai^ihg parties' expense, institute or defend such proceedings l-fmcludihg proceedings seeking a declaratory judgment) and join interested parties.
(x) The Collateral Agent will be paid a fee of $3,000 for interest on any money received by it except its agreement to serve as the Collateral Agent may agree in writing with Agent. This fee is payable upon the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel execution of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to actthis Agreement.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 1 contract
Collateral Agent. (a) The Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent The Bank of New York Mellon Trust Company, N.A., as its agent under this Agreement, Indenture and the Collateral Security Documents and the Intercreditor Agreements and the Administrative Agent Trustee and each of the Lenders Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent The Bank of New York Mellon Trust Company, N.A. to take such action on its behalf under the provisions of this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents and to exercise such rights and powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents Indenture and the Intercreditor AgreementsSecurity Documents, together with such powers as are reasonably incidental thereto. The Collateral Agent agrees to act as such on the express conditions contained in this Section 12.10. The provisions of this Section 12.11 12.10 are solely for the benefit of the Notes Collateral Agent and none of the Administrative AgentTrustee, any of the Lenders, Holders nor the Borrower nor Company or any of the Subsidiary Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in this Section 12.10 and in Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Collateral Documents Indenture and the Intercreditor AgreementsSecurity Documents, the Collateral Agent shall not have any duties or responsibilities hereunder responsibilities, except those expressly set forth herein, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Administrative AgentTrustee, any Lender Holder or the Company or any Subsidiary Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement, the Collateral Documents Indenture and the Intercreditor Agreements Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement Indenture with reference to the Collateral 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 otherwise provided in this Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Agreement, the Collateral Documents and the Intercreditor Agreements, including the exercise of remedies pursuant to Article VIII, and any action so taken or not taken shall be deemed consented to by the Administrative Agent and the Lenders.
(b) None of the Collateral Agent or any of its Affiliates agents or employees shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Security Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Agent Trustee or any Lender Holder for any recital, statement, representation, warranty, covenant or agreement made by the Borrower Company or any Subsidiary Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any AgreementIndenture, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, the Collateral Documents or any other Indenture or the Intercreditor AgreementsSecurity Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or any other Indenture or the Intercreditor AgreementsSecurity Documents, or for any failure of the Borrower, Company or any Subsidiary Guarantor or any other party to this Agreement, the Collateral Documents Indenture or the Intercreditor Agreements Security Documents to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates agents or employees shall be under any obligation to the Administrative Agent Trustee or any Lender Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement, the Collateral Documents or any other Indenture or the Intercreditor Agreements Security Documents or to inspect the properties, books, books or records of the Borrower, any Guarantor Company or any Subsidiary Guarantor’s Affiliates.
(c) The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this or any other Indenture or the Security Documents in accordance with a request or consent of the Trustee and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(d) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee or the Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 (subject to this Section 12.10); provided, however, that unless and until the Collateral Agent has received any such request, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.
(e) The Bank of New York Mellon Trust Company, N.A. and its Affiliates (and any successor Collateral Agent and its Affiliates) may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor Company and their Affiliates the Subsidiary Guarantors as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative AgentTrustee. The Administrative Agent Trustee and the Lenders Holders acknowledge that, pursuant to such activities, the Collateral Agent The Bank of New York Mellon Trust Company, N.A. or its Affiliates (and any successor Collateral Agent and its Affiliates) may receive information regarding the Borrower, any Guarantor or its Affiliates Company and the Subsidiary Guarantors (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such AffiliateCompany and the Subsidiary Guarantors) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent Trustee or the LendersHolders. Nothing herein shall impose or imply any obligation on the part of the The Bank of New York Mellon Trust Company, N.A. (or any successor Collateral Agent Agent) to advance funds.
(df) The Collateral Agent is authorized and directed may resign at any time upon thirty (30) days prior written notice to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents Trustee and the Intercreditor Agreements and (iv) perform and observe Company, such resignation to be effective upon the acceptance of a successor agent to its obligations under the appointment as Collateral Documents and the Intercreditor Agreements.
(e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct Agent. If the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights resigns under this Agreement or against Indenture, the Borrower or any Guarantor, including Company shall appoint a successor Collateral Agent. If no successor collateral agent is appointed prior to the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any intended effective date of the Collateral. If at any time or times the Administrative Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds resignation of Collateral or any payments with respect to the Obligations arising under, or relating to, this Agreement, except for any such proceeds or payments received by the Administrative Agent from the Collateral Agent pursuant to (as stated in the terms notice of this Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Administrative Agent pursuant to Article VIII, the Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent.
(f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(g) The Collateral Agent shall have no obligation whatsoever to the Administrative Agent or any of the Lenders to assure that the Collateral exists or is owned by the Borrower or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Borrower or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Agreement, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretoresignation), the Collateral Agent may act in any manner it may deem appropriateappoint, in its sole discretion given with the consent of the Company, a successor Collateral Agent’s own interest in the Collateral and that the . If no successor Collateral Agent shall have no other duty or liability whatsoever is appointed and consented to by the Company pursuant to the Administrative Agent or any Lender as to any of the foregoing.
preceding sentence within thirty (h) No provision of this Agreement, the Intercreditor Agreements or any Collateral Document shall require the Collateral Agent (or the Administrative Agent) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law30), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(j) Neither the Collateral Agent nor the Administrative Agent shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
Appears in 1 contract
Sources: Indenture (Oppenheimer Holdings Inc)