Collateral Agent. (a) The Collateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder. (b) Neither the Trustee nor the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office. (c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated: (i) to act upon directions purported to be delivered to it by any Person; (ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or (iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral. (d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents. (e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”. (f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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. (g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.
Appears in 2 contracts
Sources: Indenture (NanoString Technologies Inc), Indenture (NanoString Technologies Inc)
Collateral Agent. Notwithstanding anything to the contrary herein, the following provisions shall govern the Collateral Agent’s rights, powers, obligations and duties under this Agreement:
(a) The Each of the Holders and the Trustee pursuant to Section 13.03 of the Indenture has designated and appointed U.S. Bank National Association to act as Collateral Agent agrees that it will hold under this Agreement and the security interests in the Collateral created under the Collateral other Note Documents to which it is a party as contemplated by this Indentureparty, and has authorized the Collateral Agent to take such actions on its behalf under the provisions of this Agreement and such other Note Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement and such other Note Documents. Notwithstanding any provision to the contrary elsewhere in this Agreement or any other Note Documents the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth in this Agreement or such other Note Documents or any fiduciary relationship with any parties to the First-Lien Documents or Note Documents, and all proceeds thereofno implied covenants, for functions or responsibilities shall be read into this Agreement or otherwise exist against Collateral Agent.
(b) In no event shall the benefit ofCollateral 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 Secured Parties, without limiting 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 rights, including duties under this Section 17.02, to act in preservation Agreement or any of the Note Documents, the Collateral Agent may act through its 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) liable for any action lawfully taken or omitted to be taken by it under or in connection with this Agreement or any of the Note Documents (except for its gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction), or (ii) responsible in any manner for any recitals, statements, representations or warranties (other than its own recitals, statements, representations or warranties) made in this Agreement or any of the 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 or any of the Note Documents or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any of the Note Documents or for any failure of the Grantors or any other Person to perform their obligations hereunder and thereunder. The Collateral Agent shall not be under any obligation to any 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 or any of the Note Documents or to inspect the properties, books or records of the Grantors, (ii) whether or not any representation or warranty made by any Person in connection with this Agreement or any Note Documents is true, (iii) the performance by any Person of its obligations under this Agreement or any of the Note Documents or (iv) the breach of or default by any Person of its obligations under this Agreement or any of the Note Documents.
(e) The Collateral Agent shall not be 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, or might, constitute a breach of any law or regulation or be otherwise actionable at the suit of any Person; (iii) be under any fiduciary duties or obligations other than those for which express provision is made in this Agreement or in any of the other Note 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 Agreement or any of the other Note 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 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 have no responsibility for (i) taking any necessary steps to preserve rights against any Person with respect to any Collateral or (ii) 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 may not act or omit to take any action if such act or omission would constitute gross negligence or willful misconduct and (B) the Collateral Agent may do so and all expenses reasonably incurred in connection therewith shall be part of the Obligations.
(g) The Collateral Agent is authorized and empowered to appoint one shall not be liable or more co-collateral agents as it deems necessary responsible for any loss or appropriate; provideddiminution in the value of any of the Collateral, however, that no collateral agent hereunder shall be personally liable by reason of any the act or omission of any carrier, forwarding agency or other collateral agent hereunderor bailee selected by the Collateral Agent in good faith, except to the extent of the Collateral Agent’s gross negligence or willful misconduct.
(bh) Neither The Collateral Agent shall not be responsible for, nor incur any liability with respect to, (i) the Trustee nor 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 Agreement or any of the other Note Documents, except to the extent such action or omission constitutes gross negligence or willful misconduct on the part of the Collateral Agent nor any (as determined by a final non-appealable judgment of their respective officersa court of competent jurisdiction), directors, employees, attorneys or agents will be responsible or liable for (ii) the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, validity or sufficiency of the Collateral Documentsor any agreement or assignment contained therein, for (iii) the creationvalidity of the title of the Grantors to the Collateral, perfection, priority, sufficiency (iv) insuring the Collateral or protection of any Lien, including not being responsible for (v) the payment of any Taxestaxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, .
(i) Notwithstanding anything in this Agreement or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Note Documents or any delay to the contrary, (i) in doing so. Neither the Trustee nor no event shall the Collateral Agent nor or any of their respective officersofficer, directorsdirector, employeesemployee, attorneys representative or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection agent of the Collateral Agent’s Lien Agent be liable under or in connection with this Agreement or any of the CollateralNote 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 filing Collateral Agent has been advised of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent possibility thereof and Trademark Office or U.S. Copyright Office.
regardless of the form of action in which such damages are sought; and (cii) The the Collateral Agent shall not have any duties or obligations except those expressly be afforded all of the rights, powers, immunities and indemnities set forth in this Agreement in all of the other Note Documents to which it is a partysignatory as if such rights, powers, immunities and its duties hereunder indemnities were specifically set out in each such Note Documents. In no event shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject obligated to invest any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken amounts received by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateralhereunder.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(fj) The Collateral Agent shall be entitled conclusively to rely uponrely, and shall not incur be fully protected in relying, upon any liability for relying uponnote, any noticewriting, resolution, request, direction, certificate, notice, consent, affidavit, letter, cablegram, telegram, telecopy, email, telex or teletype message, statement, instrument, order or other document or other writing (including any electronic message, Internet or intranet website posting or other distribution) conversation believed by it in good faith to be genuine and correct and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act Persons and/or upon any such statement prior to receipt advice and/or statements of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants and other experts selected by it, the Collateral Agent and need not investigate any fact or matter stated in any such document. Any such statement of legal counsel shall not be liable for full and complete authorization and protection in respect of 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 Agreement or any of the other Note Documents (i) if such action would, in the reasonable opinion of the Collateral Agent (which may 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 Agreement or any of 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 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 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 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 has received a written notice or a certificate from the Grantors stating that a Default has occurred. The Collateral Agent shall have no obligation whatsoever either prior to or after receiving such notice or certificate to 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 certificate so furnished to it. No provision of this Agreement, the Intercreditor Agreement or any of the Note Documents shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under this Agreement, any of the other Note Documents or the exercise of 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 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.
(l) Any corporation into which the Collateral Agent may be merged, or with which it may he 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 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 may resign as Collateral Agent at any time upon written notice to the Holders, Trustee and the Grantors and may be removed at any time with or without cause by the Holders constituting at least the majority of the principal amount of the Notes outstanding (the “Requisite Holders”), with any such resignation or removal to become effective only upon the appointment of a successor Collateral Agent under this Section. If the Collateral Agent shall provide notice of its resignation or be removed as Collateral Agent, then the Requisite Holders shall (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 may) appoint a successor Collateral Agent which successor agent shall, in the case of any appointment by the Collateral Agent, be reasonably acceptable to the Requisite Holders, and the former Collateral Agent’s rights, powers and duties as Collateral Agent shall be terminated, without any other or further act or deed on the part of such former Collateral Agent (except that the resigning Collateral Agent shall deliver all Collateral then in its possession 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)). After any retiring Collateral Agent’s resignation or removal hereunder as Collateral Agent, the provisions of this Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it in accordance with while it was Collateral Agent. In the advice of any such counsel, accountants or experts.
(g) At all times when the Trustee event that a successor Collateral Agent is not itself appointed within the time period specified in this Section following the provision of a notice of resignation or removal of the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies or any other Secured Party may petition a court of all documents delivered to competent jurisdiction for the appointment of a successor Collateral Agent pursuant to (at the Collateral Documentsjoint and several expense of the Grantors).
Appears in 2 contracts
Sources: Second Lien Collateral Agreement (Appvion, Inc.), Second Lien Collateral Agreement (Appvion, Inc.)
Collateral Agent. (a) The Collateral Agent agrees that it will hold shall have all the security interests rights and protections provided in the Collateral created under the Collateral Security Documents to which it is a party as contemplated by this Indenture, and any and shall have all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in rights and protections provided to the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunderappointed pursuant to the CEI Credit Agreement.
(b) Neither Subject to Section 7.01, neither the Trustee nor the Collateral 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, effectiveness or sufficiency of the Collateral Security Documents, for the obtaining or maintaining insurance on any Collateral, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon Lien securing the Collateral or otherwise as to the maintenance of the CollateralNotes Obligations, or for any defect or deficiency as to any such matters. Beyond the exercise of reasonable care in the custody thereof, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor shall have no duty as to any of their respective officers, directors, employees, attorneys Collateral in its possession or agents will be responsible control or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing possession or control of any UCC financing statements, continuation statements, Mortgages agent or bailee or any filings with respect income thereon or as to the U.S. Patent preservation of rights against prior parties or any other rights pertaining thereto and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to responsible for filing any fiduciary financing or other implied duties, regardless 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 whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and any security interest in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth hereinCollateral. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer exercised reasonable care in the custody of the Collateral Agent in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property and 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 Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior in good faith.
(c) Subject to the Braidwell Disposition DateSecurity Documents and the First Lien Intercreditor Agreement, (i) the Braidwell Holders, and prior to Trustee shall direct the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except ii) except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, Trustee as required or permitted by this Indenture and any other representativesrepresentatives or pursuant to the Security Documents, and only if indemnified to its satisfaction, the holders acknowledge that the Collateral 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 created under securing the Collateral DocumentsNotes Obligations; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the LiensLien securing the Notes Obligations, Collateral Security Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts holders of Notes agree that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, protections, immunities, indemnities and benefits provided to the Collateral Agent by the Security Documents. Furthermore, each holder of a Note, by accepting such Note, consents and agrees to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Collateral Agent to enter into and perform the First Lien Intercreditor Agreement (and any future First Lien Intercreditor Agreement), any Junior Lien Intercreditor Agreement and Security Documents in each of its capacities thereunder.
(e) If the Company or any applicable Restricted Subsidiary (i) Incurs First Priority Lien Obligations at any time when the First Lien Intercreditor Agreement is not 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, and (ii) delivers to the Trustee and Collateral Agent an Officer’s Certificate so stating and requesting the Trustee and/or the Collateral Agent to enter into a First Lien Intercreditor Agreement in favor of a designated agent or representative for the holders of the First Priority Lien Obligations so Incurred, the holders acknowledge that the Trustee under Article 7; provided that any references in and the Collateral Agent is hereby authorized and directed to (and shall) enter into such Article 7 to “Trustee” shall be references to “Collateral Agent” intercreditor agreement, bind the holders on the terms set forth therein and any references to “negligence” shall be references to “gross negligence”perform and observe its obligations thereunder.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, If the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered or any applicable Restricted Subsidiary Incurs any Junior Lien Obligations and delivers to the Collateral Agent and copies of all documents delivered to the Trustee an Officer’s Certificate requesting the Trustee and/or the Collateral Agent pursuant to enter into a Junior Lien Intercreditor Agreement with a designated agent or representative for the holders of the Junior Lien Obligations so Incurred, the Trustee and the Collateral DocumentsAgent are hereby authorized and directed to (and shall) enter into such intercreditor agreement, bind the holders on the terms set forth therein and perform and observe its obligations thereunder.
Appears in 2 contracts
Sources: Indenture (Caesars Entertainment, Inc.), Indenture (Caesars Entertainment, Inc.)
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 Each of the Holders and the Trustee hereby designates and appoints U.S. Bank National Association to act as Collateral Agent agrees that it will hold under this Security Agreement and the security interests in the Collateral created under the Collateral other Note Documents to which it is a party as contemplated by this Indentureparty, and hereby authorizes the Collateral Agent to take such actions on its behalf under the provisions of this Security Agreement and such other Note Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Security Agreement and such other Note Documents. Notwithstanding any provision to the contrary elsewhere in this Security Agreement or any other Note Documents the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth in this Security Agreement or such other Note Documents or any fiduciary relationship with any parties to the First-Lien Documents or Second-Lien Note Documents, and all proceeds thereofno implied covenants, for functions or responsibilities shall be read into this Security Agreement or otherwise exist against Collateral Agent.
(b) In no event shall the benefit ofCollateral 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 Secured Parties, without limiting 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 rights, including 's duties under this Section 17.02, to act in preservation Security Agreement or any of the Note Documents, the Collateral Agent may act through its 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) liable for any action lawfully taken or omitted to be taken by it under or in connection with this Security Agreement or any of the Note Documents (except for its gross negligence or willful misconduct), or (ii) responsible in any manner 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 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 Security Agreement or any of the Note Documents or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Security Agreement or any of the Note Documents or for any failure of the Grantors or any other Person to perform their obligations hereunder and thereunder. The Collateral Agent shall not be under any obligation to any Person to ascertain or to inquire as to (i) the observance or performance of any of the agreements contained in, or conditions of, this Security Agreement or any of the Note Documents or to inspect the properties, books or records of the Grantors, (ii) whether or not any representation or warranty made by any Person in connection with this Security Agreement or any Note Documents is true, (iii) the performance by any Person of its obligations under this Security Agreement or any of the Note Documents or (iv) the breach of or default by any Person of its obligations under this Security Agreement or any of the Note Documents.
(e) The Collateral Agent shall not be 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, or might, constitute a breach of any law or regulation or be otherwise actionable at the suit of any Person; (iii) be under any fiduciary duties or obligations other than those for which express provision is made in this Security Agreement or in any of the 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 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 have no responsibility for (i) taking any necessary steps to preserve rights against any Person with respect to any Collateral or (ii) 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 may not act or omit to take any action if such act or omission would constitute gross negligence or willful misconduct and (B) the Collateral Agent may do so and all expenses reasonably incurred in connection therewith shall be part of the Secured Obligations.
(g) The Collateral Agent is authorized and empowered to appoint one shall not be liable or more co-collateral agents as it deems necessary responsible for any loss or appropriate; provideddiminution in the value of any of the Collateral, however, that no collateral agent hereunder shall be personally liable by reason of any the act or omission of any carrier, forwarding agency or other collateral agent hereunderor bailee selected by the Collateral Agent in good faith, except to the extent of the Collateral Agent's gross negligence or willful misconduct.
(bh) Neither the Trustee nor the The Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will shall not be responsible or liable for for, nor incur any liability with respect to, (i) the existence, genuineness, genuineness or value or protection of any of the Collateral or for the validity, perfection, priority or enforceability of the security interest in any of the Collateral, for 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 legalityother Note Documents, enforceabilityexcept to the extent such action or omission constitutes gross negligence or willful misconduct on the part of the Collateral Agent, effectiveness, (ii) the validity or sufficiency of the Collateral Documentsor any agreement or assignment contained therein, for (iii) the creationvalidity of the title of the Grantors to the Collateral, perfection, priority, sufficiency (iv) insuring the Collateral or protection of any Lien, including not being responsible for (v) the payment of any Taxestaxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, .
(i) Notwithstanding anything in this Security Agreement or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Note Documents or any delay to the contrary, (i) in doing so. Neither the Trustee nor no event shall the Collateral Agent nor or any of their respective officersofficer, directorsdirector, employeesemployee, attorneys representative or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection agent of the Collateral Agent’s Lien Agent be liable under or in connection with this Security Agreement or any of the CollateralNote 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 filing Collateral Agent has been advised of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent possibility thereof and Trademark Office or U.S. Copyright Office.
regardless of the form of action in which such damages are sought; and (cii) The the Collateral Agent shall not have any duties or obligations except those expressly be afforded all of the rights, powers, immunities and indemnities set forth in this Security Agreement in all of the other Note Documents to which it is a partysignatory as if such rights, powers, immunities and its duties hereunder indemnities were specifically set out in each such Note Documents. In no event shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject obligated to invest any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken amounts received by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateralhereunder.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(fj) The Collateral Agent shall be entitled conclusively to rely uponrely, and shall not incur be fully protected in relying, upon any liability for relying uponnote, any noticewriting, resolution, request, direction, certificate, notice, consent, affidavit, letter, cablegram, telegram, telecopy, email, telex or teletype message, statement, instrument, order or other document or other writing (including any electronic message, Internet or intranet website posting or other distribution) conversation believed by it in good faith to be genuine and correct and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act Persons and/or upon any such statement prior to receipt advice and/or statements of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants and other experts selected by it, the Collateral Agent and need not investigate any fact or matter stated in any such document. Any such statement of legal counsel shall not be liable for full and complete authorization and protection in respect of 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 of the other Note Documents (i) if such action would, in the reasonable opinion of the Collateral Agent (which may 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 of 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 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 has received a written notice or a certificate from the Grantors stating that a Default has occurred. The Collateral Agent shall have no obligation whatsoever either prior to or after receiving such notice or certificate to 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 certificate so furnished to it. No provision of this Security Agreement, the Intercreditor Agreement or any of the Note Documents shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under this Security Agreement, any of the other Note Documents or the exercise of 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.
(l) 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 may resign as Collateral Agent at any time upon written notice to the Holders, Trustee and the Grantors and may be removed at any time with or without cause by the Requisite Secured Parties, with any such resignation or removal to become effective only upon the appointment of a successor Collateral Agent under this Section. If the Collateral Agent shall provide notice of its resignation or be removed as Collateral Agent, then the Requisite Secured Parties shall (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 may) appoint a successor Collateral Agent which successor agent shall, in the 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 terminated, without any other or further act or deed on the part of such former Collateral Agent (except that the resigning Collateral Agent shall deliver all Collateral then in its possession 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)). After any retiring Collateral Agent's resignation or removal hereunder as Collateral Agent, the provisions of this Security Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it in accordance with while it was Second Collateral Agent. In the advice of any such counsel, accountants or experts.
(g) At all times when the Trustee event that a successor Collateral Agent is not itself appointed within the time period specified in this Section following the provision of a notice of resignation or removal of the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies or any other Second Priority Secured Party may petition a court of all documents delivered to competent jurisdiction for the appointment of a successor Collateral Agent pursuant to (at the Collateral Documentsjoint and several expense of the Grantors).
Appears in 2 contracts
Sources: Second Lien Collateral Agreement (Paperweight Development Corp), Second Lien Collateral Agreement (Paperweight Development Corp)
Collateral Agent. (a) The Collateral Agent agrees that it will hold At the security interests in direction of the Collateral created under Holders of the Collateral Documents Notes, the Trustee shall appoint a collateral agent, which shall be authorized to which it is a party as contemplated by this Indenture, act on behalf of and any and all proceeds thereof, for the benefit ofof the Holders of the Notes. In accordance with the foregoing, on the Secured PartiesIssue Date, without limiting Deutsche Bank Trust Company Americas is hereby appointed by the Collateral Agent’s rightsTrustee, including under this Section 17.02at the direction of the Holders of the Notes, to act in preservation serve as Collateral Agent for the benefit of the security interest in Holders of the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunderNotes.
(b) Neither The Collateral Agent appointed by the Trustee nor as provided in Section 10.08(a) hereof shall be the Collateral Agent nor any secured party 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings record with respect to the U.S. Patent security interests created in respect of the Collateral under the Collateral Documents and Trademark Office or U.S. Copyright Officeshall hold such Collateral for the benefit of the Holders of the Notes.
(c) The Collateral Agent shall not have hold (directly or through co-agents), and shall be entitled to enforce, all Liens on the Collateral created by the Collateral Documents in accordance with the terms of the Collateral Documents. Neither the Company or any duties or obligations except those expressly set forth of the Guarantors nor their respective Affiliates may serve as Collateral Agent.
(d) Except as provided in the Note Documents to which it is a partyCollateral Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
obligated to: (i) to act upon directions purported to be delivered to it by any Person;
; (ii) to foreclose upon or otherwise enforce any Lien created under the Collateral DocumentsLien; or
or (iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard pursuant to any or all of the LiensCollateral Documents, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens created thereby or Collateral Documentsthe Collateral.
(e) In acting as A resignation or removal of the Collateral Agent hereunder and under appointment of a successor Collateral Agent will become effective pursuant to the terms of the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) The Collateral Agent shall be entitled to rely uponall the rights, protections, privileges and shall not incur immunities granted to the Trustee under this Indenture. Whenever reference is made in this Indenture or the Collateral Documents to any liability for relying upon, any notice, request, certificateaction by, consent, statementdesignation, instrumentspecification, document requirement or approval of, notice, request or other writing (including any electronic messagecommunication from, Internet or intranet website posting or other distribution) believed by it direction given or action to be genuine and undertaken or to have been signedbe (or not to be) suffered or omitted by the Collateral Agent or to any election, sent 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 acting, giving, withholding, suffering, omitting, taking or otherwise authenticated by undertaking and exercising the proper Person same (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants and other experts selected by it, and shall not be liable undertaking and exercising the same) as directed by the Trustee. 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 action taken defense, claim or not taken by it in accordance with the advice of counterclaim, or confer any such counsel, accountants rights or expertsbenefits on any party hereto.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders The duties of Notes, copies of all Collateral Documents delivered to the Collateral Agent shall be mechanical and copies administrative in nature. The Collateral Agent shall not have, by reason hereof or any of all documents delivered the Collateral Documents, a fiduciary relationship with any Holder, the Company, any Guarantor or any other Person, and nothing herein or in any of the Collateral Documents, inferred or implied, is intended to or shall be so construed as to impose upon the Collateral Agent pursuant to any duties, responsibilities or obligations in respect hereof or of any of the Collateral Documents, except as expressly set forth herein or therein.
Appears in 2 contracts
Sources: Indenture (Maxcom Telecommunications Inc), Indenture
Collateral Agent. (a) The Collateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents has been appointed to which it is a party act as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the “Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent ” hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as Purchasers pursuant to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing soRevenue Sharing and Note Purchase Agreement. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) The Collateral Agent shall be entitled to rely upon, and shall not incur have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any liability for relying uponrights, 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 other Purchase Documents; provided, Collateral Agent shall, after payment in full of all Obligations under the Revenue Sharing and Note Purchase Agreement and the other Purchase Documents, exercise, or refrain from exercising, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents remedies provided for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it herein in accordance with the advice instructions of the Majority Purchasers. 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 counselSecured Party that all powers, accountants or experts.
(g) At all times when rights and remedies hereunder may be exercised solely by Collateral Agent for the Trustee is not itself benefit of Secured Parties in accordance with the terms of this section. Collateral Agent may resign, and a successor be appointed, in accordance with the Revenue Sharing and Note Purchase Agreement. After any retiring Collateral Agent’s resignation hereunder as Collateral Agent, the Company will deliver provisions of this Agreement shall inure to the Trustee, which shall deliver its benefit as to the Holders of Notes, copies of all Collateral Documents delivered any actions taken or omitted to the be taken by it under this Agreement while it was Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documentshereunder.
Appears in 2 contracts
Sources: Revenue Sharing and Note Purchase Agreement (Andrea Electronics Corp), Security Agreement (Inventergy Global, Inc.)
Collateral Agent. (a) The Issuer hereby appoints Bank of America, N.A. to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Security Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Security Documents, and Bank of America, N.A. agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that it will hold the security interests in any action taken by the Collateral created under Agent in accordance with the Collateral Documents to which it is a party as contemplated by provisions of this Indenture, the Intercreditor Agreement and any the Security Documents, and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable exercise by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the legality, enforceability, effectiveness, contrary contained elsewhere in this Indenture or sufficiency of the Collateral Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations responsibilities except those expressly set forth in this Indenture, the Note Security Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein party and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacityIntercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct (as determined by the final and non-appealable judgment of a court of competent jurisdictionjurisdiction in a final, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenturenon-appealable order). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, signed or sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof)person. The Collateral Agent may also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof)person, and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counselcounsel (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.
(gb) At all times when Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, 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 and subject to the Security Documents, the Collateral Agent:
(i) shall not itself be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Security Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Security Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct (it being understood that any determination that the Collateral Agent’s actions constituted gross negligence or willful misconduct must be determined by a court of competent jurisdiction in a final, non-appealable order) 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 any other Security 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 Security 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 or the occurrence of any 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 the Security Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Security 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 pursuant to the Security Documents or any lien and/or any filing, or recording or otherwise creaing, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Notes, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Security Document, each Holder, by its acceptance of the Notes, agrees that the Collateral Agent shall execute and deliver the Security Documents to 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 directed by each Holder to so hold, and shall be entitled to 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 Security Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive 1. by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Note Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or 2. payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and copies the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or 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 documents delivered of the Issuer’s or any Guarantor’s property constituting Collateral 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 Indenture or any Security Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral DocumentsAgent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Security Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Security Documents or the 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 rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the First Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and 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 Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or 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 2 contracts
Sources: Indenture (Qwest Corp), Indenture (Qwest Corp)
Collateral Agent. (a) The Company has appointed U.S. Bank National Association to serve as Collateral Agent agrees that it will hold under the security interests in Intercreditor Agreement and the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereofDocuments, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in Holders of the Collateral. Notes.
(b) The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties (directly or obligations except those expressly set forth in the Note Documents to which it is a partythrough co-trustees, agents or sub-agents) will hold, and its duties hereunder shall will be administrative in nature. Without limiting entitled to enforce, all Liens on the generality of the foregoing, Collateral.
(1d) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, Trustee from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions Except as may be given to it directed by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except , the Intercreditor Agreement or as directed by the Administrative Determination Holder(s), prior to Holders with the Braidwell Disposition Date, the Braidwell requisite consent of such Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligatedobligated to:
(i1) to act upon directions purported to be delivered to it by any other Person;
(ii2) to foreclose upon or otherwise enforce any Lien created under the Collateral DocumentsLien; or
(iii3) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the LiensCollateral Documents, the Liens created thereby or the Collateral. The Company shall do or cause to be done all such acts and things as may be necessary or proper, or as may be required by the provisions of the Intercreditor Agreement and the Noteholder Documents, to assure and confirm to the Trustee and the Collateral Agent the security interest in the Collateral contemplated hereby, by the Intercreditor Agreement, the Noteholder Documents or Collateralany part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Indenture and of the Guarantees secured thereby, according to the intent and purposes herein and therein expressed.
(de) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of Liens created by the Liens or Collateral Documents.
(ef) In acting as Collateral Agent hereunder and under the Collateral DocumentsAgent, the Collateral Agent shall be entitled to conclusively may rely upon and enforce each and all of the rights, privilegespowers, protections, immunities, indemnities and benefits of the Trustee under Article 7; provided that any 7 mutatis mutandis, and, in connection therewith, references in such Article 7 to “Trustee” the Trustee shall be deemed to include the Collateral Agent and references to “this Indenture shall be deemed to include the Collateral Documents and references to negligence with respect to the Trustee will be deemed to be gross negligence with respect to the Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times Each successor Trustee will become the successor Collateral Agent as and when the successor Trustee is not itself the Collateral Agent, the Company will deliver to becomes the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.
Appears in 2 contracts
Sources: Indenture (Vector Group LTD), Indenture (Vector Group LTD)
Collateral Agent. (a) The Collateral Agent agrees that it will hold shall have all the security interests rights and protections provided in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunderFirst Lien Security Documents.
(b) Neither Subject to Section 7.01, neither the Trustee nor the Collateral 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, effectiveness or sufficiency of the Collateral Security Documents, for the obtaining or maintaining insurance on any Collateral, for the creation, perfection, priority, sufficiency or protection of any First Priority Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters. Beyond the exercise of reasonable care in the custody thereof, the Trustee shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Trustee 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 maintaining the perfection of any security interest in the Collateral. The Trustee shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any failure to demand, collect, foreclose loss or realize upon or otherwise enforce diminution in the value of any of the Liens Collateral, by reason of the act or Collateral Documents omission of any carrier, forwarding agency or any delay in doing so. Neither other agent or bailee selected by the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Officegood faith.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in Subject to the Note First Lien Security Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoingFirst Lien Intercreditor Agreement, (1i) the Trustee shall direct the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3ii) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, Trustee as required or permitted by this Indenture and any other representatives, and only if indemnified representatives or pursuant to its satisfactionthe Security Documents, the holders acknowledge that Collateral Agent will not be obligated:
(i1) to act upon directions purported to be delivered to it by any other Person;
(ii2) to foreclose upon or otherwise enforce any Lien created under the Collateral DocumentsFirst Priority Lien; or
(iii3) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the First Priority Liens, Collateral Security Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts holders of Notes agree that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, protections, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent by the Security Documents. Furthermore, each holder of a Note, by accepting such Note, consents to the terms of and copies authorizes and directs the Trustee (in each of all documents delivered its capacities) and the Collateral Agent to enter into and perform the First Lien Intercreditor Agreement, Second Lien Intercreditor Agreement and Security Documents in each of its capacities thereunder.
(e) If the Issuer (i) Incurs First Priority Lien Obligations at any time when the First Lien Intercreditor Agreement is not 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, and (ii) directs the Trustee to deliver to the Collateral Agent pursuant to an Officers’ Certificate so stating and requesting the Collateral DocumentsAgent to enter into an intercreditor agreement (on substantially the same terms as the First Lien Intercreditor Agreement in effect on the Issue Date) in favor of a designated agent or representative for the holders of the First Priority Lien Obligations so Incurred, 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.
Appears in 2 contracts
Sources: Indenture (CAESARS ENTERTAINMENT Corp), Indenture (CAESARS ENTERTAINMENT Corp)
Collateral Agent. (a) The Collateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, has been appointed to act in preservation as Collateral Agent hereunder by Lenders and, by their acceptance of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms benefits hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth hereinSecured Parties. The Collateral Agent shall be deemed obligated, and 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 Pledged Collateral), solely in accordance with this Agreement and the Credit Agreement; provided, the Collateral Agent shall, after all Secured Obligations have been Paid in Full 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 (the “Majority Holders”) of a majority of the aggregate “settlement amount” as defined in the Hedge Agreements (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. For purposes of the foregoing sentence, settlement amount for any Hedge Agreement that has not been terminated shall be the settlement amount as of the last Business Day of the month preceding any date of determination and shall be calculated by the appropriate swap counterparties and reported to have knowledge the Collateral Agent upon request; provided any Hedge Agreement with a settlement amount that is a negative number shall be disregarded for purposes of any Default or Event determining the Majority Holders. In furtherance of Default unless and until written notice thereof (stating the foregoing provisions of this Section 10, each Secured Party, by its acceptance of the benefits hereof, agrees that it is a “notice shall have no right individually to realize upon any of default” the Pledged Collateral hereunder, it being understood and describing agreed by such Default 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 10. The provisions of the Credit Agreement relating to the Collateral Agent including, without limitation, the provisions relating to resignation or Event of Default) is given to a Responsible Officer removal of the Collateral Agent by and the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), powers and prior to the Braidwell Disposition Date, the Braidwell Holders, duties and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, immunities of the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it are incorporated herein by this reference and shall survive any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all termination of the Liens, Collateral Documents or CollateralCredit Agreement.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(fb) The Collateral Agent shall have the right to appoint one or more sub-agents for the purpose of retaining physical possession of the Pledged Collateral, which may 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 held (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt discretion of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent) in the name of the relevant Grantor, the Company will deliver to the Trustee, which shall deliver to the Holders endorsed or assigned in blank or in favor of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies or any nominee or nominees of all documents delivered to the Collateral Agent pursuant to or a sub-agent appointed by the Collateral DocumentsAgent.
Appears in 2 contracts
Sources: Pledge Agreement (American Casino & Entertainment Properties LLC), Pledge Agreement (American Casino & Entertainment Properties LLC)
Collateral Agent. (a) The Collateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including without limitation not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including without limitation, the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, Trustee as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, Trustee copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.
Appears in 2 contracts
Sources: Indenture (Orexigen Therapeutics, Inc.), Indenture (Orexigen Therapeutics, Inc.)
Collateral Agent. (a) The Each Investor hereby irrevocably appoints the Collateral Agent agrees that it will hold the security interests in as its agent and authorizes the Collateral created under Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Documents to which Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The 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 is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting were not the Collateral Agent’s rights, including under this Section 17.02and such Person and its Affiliates may accept deposits from, lend money to act and generally engage in preservation any kind of business with the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one Company or more co-collateral agents any Subsidiary or other Affiliate thereof as if it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor were not the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing sohereunder. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in natureherein. Without limiting the generality of the foregoing, (1i) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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 partiescontinuing, (2ii) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Lawsthis Agreement, and (3iii) except as expressly set forth in the Note Documents to which it is a partyherein, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party the Company or any of its Affiliates the Subsidiaries that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth hereinmisconduct. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or an Investor (and, promptly after its receipt of any Holder. The Collateral Agent will be subject to such directions as may be given to notice, it by shall give each Investor and the Trustee, or the Administrative Determination Holder(sCompany notice thereof), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will shall not be obligated:
responsible for or have any duty to ascertain or inquire into (ia) 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 act upon directions purported confirm receipt of items expressly required to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) . 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 (including any electronic message, Internet or intranet website posting or other distribution) reasonably believed by it to be genuine and to have been signed, signed or sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof)Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and reasonably believed by it to have been be made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof)Person, and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counselcounsel (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.
(g) At . The Collateral Agent may perform any and all times when the Trustee is not itself 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 will deliver 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 Trustee, which shall deliver to the Holders affiliates of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies any such sub agent, and shall apply to their respective activities acting for the Collateral Agent. Subject to the appointment and acceptance of all documents delivered to a successor Collateral Agent as provided in this paragraph, the Collateral Agent pursuant 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 while it was acting as Collateral Agent. Each Investor acknowledges that it has, independently and without reliance upon the Collateral Agent or any other Investors and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into the Secured Transaction Documents. Each Investor also acknowledges that it will, independently and without reliance upon the Collateral Agent or any other Investors and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon any Secured Transaction Document, any related agreement or any document furnished thereunder.
Appears in 2 contracts
Sources: Guarantee and Security Agreement (NeuMedia, Inc.), Guarantee and Security Agreement (NeuMedia, Inc.)
Collateral Agent. (a) The Holder, by acceptance of the Note, hereby designates and appoint the Collateral Agent agrees that it will hold as its agent under the security interests in Security Documents and the Holder by acceptance of the Note, hereby irrevocably authorizes the Collateral created Agent to take such action on its behalf under the Collateral provisions of this Note and the Security Documents and to which it is a party exercise such powers and perform such duties as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting are expressly delegated to the Collateral Agent’s rightsAgent by the terms of this Note and the Security Documents and consents and agrees to the terms of this Note and each Security Document (as applicable), including under this Section 17.02as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to act time in preservation of the security interest in the Collateralaccordance with their respective terms. The Collateral Agent is authorized and empowered agrees to appoint one or more co-collateral agents act as it deems necessary or appropriate; provided, however, such on the express conditions contained in this Section 11.5. The Holder agrees that no collateral agent hereunder shall be personally liable any action taken by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral Agent nor any in accordance with the provisions of their respective officersthis Note or the Security Documents (as applicable), directors, employees, attorneys or agents will be responsible or liable for and the existence, genuineness, value or protection exercise by the Collateral Agent of any Collateral, for rights or remedies set forth herein and therein shall be authorized and binding upon all Noteholders. Notwithstanding any provision to the legality, enforceability, effectiveness, contrary contained elsewhere in this Note or sufficiency the Security Documents (as applicable) the duties of the Collateral DocumentsAgent shall be ministerial and administrative in nature, for and the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations responsibilities, except those expressly set forth herein and in the Note Security Documents (as applicable) to which it the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with any holder or any grantor, and its duties hereunder no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be administrative in natureread into this Note, the Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoingforegoing sentence, the use of the term “agent” herein and in the other this 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 and insteadapplicable 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, .
(2b) the The Collateral Agent shall not have may perform any duty of its duties under this Note and/or the Security Documents (as applicable) by or through receivers, agents, employees, attorneys-in-fact or with respect to take any discretionary action or exercise any discretionary powersspecified Person, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holderssuch Person’s Affiliates, and prior to the Deerfield Disposition Daterespective officers, the Deerfield Holders directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documentsa “Related Person”); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure entitled to discloseadvice 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 information relating to any Note Party advice or any of its Affiliates that is communicated to or obtained opinion given by the Person serving as Collateral Agent or any of its Affiliates in any capacitylegal counsel. The Collateral Agent shall not be liable responsible for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as determined by the final long as such selection was made in good faith and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth hereindue care. The Collateral Agent exculpatory provisions of this Article 11 shall be deemed not apply to have knowledge of any Default or Event of Default unless such sub-agent and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer the Affiliates of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateralsuch sub-agent.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.
Appears in 2 contracts
Sources: Investment Agreement (Inspirato Inc), Investment Agreement (Inspirato Inc)
Collateral Agent. (a) The Collateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders ) (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders ) (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, ) from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, ) from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, ) as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.
Appears in 2 contracts
Collateral Agent. (a) The 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 Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that it will hold the security interests in any action taken by the Collateral created under Agent in accordance with the provisions 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 Indenture or the Collateral Documents, the Collateral Agent will not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacityIntercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct (as determined by the final and non-appealable judgment of a court of competent jurisdictionjurisdiction in a final, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenturenon-appealable order). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, signed or sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof)person. The Collateral Agent may also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof)person, and may act upon any such statement prior to receipt of written confirmation thereof and shall will not incur any liability for relying thereon. The Collateral Agent may consult with legal counselcounsel (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.
(gb) At all times when Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, 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) the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) the Trustee and the Collateral Agent are be 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 and subject to the Collateral Documents, the Collateral Agent:
(i) shall not itself be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct 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 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, (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 or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to 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 for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the New Notes, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the New Notes, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to 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 directed by each Holder to so hold, and shall be entitled to 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, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (1) 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 Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (2) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and copies the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or 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 documents delivered of the Issuer’s or any Guarantor’s property constituting Collateral 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 Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral DocumentsAgent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the 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 rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the First Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and 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 Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or 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 2 contracts
Sources: Indenture (Level 3 Parent, LLC), Indenture (Level 3 Parent, LLC)
Collateral Agent. (a) The Collateral Agent agrees that shall not be liable for any action taken, suffered, or omitted to be taken by it will hold in good faith and believed by it to be authorized or within the security interests in the Collateral created under the Collateral Documents to which discretion or rights or powers conferred upon it is a party as contemplated by this IndentureAgreement or any other Loan Document. The rights, privileges, protections, immunities and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting benefits given to the Collateral Agent’s rights, including its right to be indemnified, are extended to, and shall be enforceable by, the Collateral Agent in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder. The Collateral Agent may request that any Loan Party or the 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 any of the 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 refrain from taking action hereunder or under any of the other Loan Documents shall not be construed as a duty. Money held by the Collateral Agent under this Section 17.02Agreement 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 act 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 the State of New York, or it is determined by any court or other competent authority in that jurisdiction or in the State of New York that it does not have such power or authority. Anything in this Agreement or in any of the Loan Documents notwithstanding, 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 profit), even if the Collateral Agent has been advised as to the likelihood of such loss or damage and regardless of the form of action. The Collateral Agent shall not be liable for any error of judgment made in good faith by an officer or officers of the Collateral Agent, unless it shall be conclusively determined in a final non-appealable judgment by a court of competent jurisdiction that the Collateral Agent was grossly negligent or acting with willful misconduct in ascertaining the pertinent facts. The Collateral Agent shall have no obligation to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder.
(b) Beyond the exercise of reasonable care in the custody thereof and as otherwise specifically set forth herein, the Collateral Agent shall not have any duty as to any of the Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Collateral Agent 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 maintaining the perfection of any security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one shall not be liable or more co-collateral agents as it deems necessary responsible for any loss or appropriate; provideddiminution in the value of any of the Collateral, however, that no collateral agent hereunder shall be personally liable by reason of any the act or omission of any carrier, forwarding agency or other collateral agent hereunderor bailee selected by the Collateral Agent in good faith.
(bc) Neither the Trustee nor the The Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will shall not be responsible or liable for the existence, genuineness, genuineness or value or protection 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 legality, enforceability, effectiveness, validity or sufficiency of the Collateral Documentsor any agreement or assignment contained therein, for the creation, perfection, priority, sufficiency or protection validity of the title of any LienLoan Party to the Collateral, including not being responsible for insuring the Collateral or for the payment of any Taxestaxes, charges charges, assessments or assessments Liens upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Any Person into which the Collateral Agent will may be accountable only for amounts that merged or converted or with which it actually receives as may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Collateral Agent shall be a result party, or any Person succeeding to all or substantially all of the enforcement corporate agency or corporate trust business of the Liens or Collateral Documents.
(e) In acting as Agent shall be the successor of the Collateral Agent hereunder and under the Collateral other Loan Documents, without the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all execution or filing of any paper or any further act on the part of any of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”parties hereto.
(fe) The Collateral Agent shall be entitled to rely upon, and shall not incur upon any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document notice or other writing document (including any facsimile or electronic message, Internet or intranet website posting or other distributionmail) believed by it to be genuine and correct and to have been signed, signed or sent by or otherwise authenticated by on behalf of the proper Person or Persons (whether without any duty (express or not such Person in fact meets implied) of the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon to verify the genuineness or correctness of any statement made to it orally fact stated therein or by telephone and believed by it to have been made by propriety of the proper Person (whether signatory or not such Person in fact meets deliverer or otherwise the requirements set forth in the Note Documents for being the maker validity or enforceability thereof), and may act upon any such statement prior to receipt advice and statements of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with 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 shall not be liable for any action taken or not taken by failure to act pursuant thereto shall be binding on the Administrative Agent and the Secured Parties. Whenever in the administration of this Agreement the Collateral Agent 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 accordance with the advice 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 such counselduty or exercise any power or right unless it receives indemnity reasonably satisfactory to it against any loss, accountants liability or expertsexpense.
(g) At all times when Notwithstanding anything else to the Trustee 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 itself 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 Company will deliver Collateral Agent shall be fully justified in failing or refusing to take any such action under this Agreement or such other Loan Document if it shall not have received written directions of the TrusteeAdministrative Agent, which Required Lenders or the Secured Parties in respect of such matter. Further, the Collateral Agent shall deliver be permitted to request that all instructions and directions of the Holders of NotesAdministrative Agent, copies of all Collateral Documents delivered Required Lenders or the Secured Parties provided to the Collateral Agent and copies of all documents delivered to hereunder or under the other Security Documents be in writing (and, in such a case, the Collateral Agent pursuant to shall be excused from following any such instructions or directions that are not in writing). This provision is intended solely for the benefit of the Collateral DocumentsAgent 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 Each Investor hereby irrevocably appoints the Collateral Agent agrees that it will hold the security interests in as its agent and authorizes the Collateral created under Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Documents to which Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The 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 is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting were not the Collateral Agent’s rights, including under this Section 17.02and such Person and its Affiliates may accept deposits from, lend money to act and generally engage in preservation any kind of business with the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one Company or more co-collateral agents any Subsidiary or other Affiliate thereof as if it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor were not the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing sohereunder. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in natureherein. Without limiting the generality of the foregoing, (1i) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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 partiescontinuing, (2ii) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Lawsthis Agreement, and (3iii) except as expressly set forth in the Note Documents to which it is a partyherein, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party the Company or any of its Affiliates the Subsidiaries that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth hereinmisconduct. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or an Investor (and, promptly after its receipt of any Holder. The Collateral Agent will be subject to such directions as may be given to notice, it by shall give each Investor and the Trustee, or the Administrative Determination Holder(sCompany notice thereof), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will shall not be obligated:
responsible for or have any duty to ascertain or inquire into (ia) 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 act upon directions purported confirm receipt of items expressly required to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) . 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, signed or sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof)Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof)Person, and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counselcounsel (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.
(g) At . The Collateral Agent may perform any and all times when the Trustee is not itself 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 will deliver 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 Trustee, which shall deliver to the Holders affiliates of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies any such sub agent, and shall apply to their respective activities acting for the Collateral Agent. Subject to the appointment and acceptance of all documents delivered to a successor Collateral Agent as provided in this paragraph, the Collateral Agent pursuant 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 while it was acting as Collateral Agent. Each Investor acknowledges that it has, independently and without reliance upon the Collateral Agent or any other Investor and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into the Secured Transaction Documents.. Each Investor also acknowledges that it will, independently and without reliance upon the Collateral Agent or any other Investor and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon any Secured Transaction Document, any related agreement or any document furnished thereunder
Appears in 2 contracts
Sources: Guaranty and Security Agreement (Vyyo Inc), Guaranty and Security Agreement (Vyyo Inc)
Collateral Agent. (a) The Company hereby appoints ▇▇▇▇▇ Fargo Bank, N.A. to act as Collateral Agent, and the Collateral Agent agrees shall have the duties, rights, indemnities, privileges, powers and immunities of the Collateral Agent as set forth herein and in the Security Documents. The Company and the Guarantors hereby agree that it will the Collateral Agent or its nominee shall hold the security interests Collateral, on a first-priority basis, in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, trust for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of all of the security interest Holders and the Trustee, in each case, pursuant to the Collateral. The terms of the Security Documents and the Collateral Agent is hereby authorized to execute and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunderdeliver the Security Documents.
(b) Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, effectiveness or sufficiency of the Collateral Security Documents, for the creation, perfection, priority, sufficiency sufficiency, maintenance, renewal or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as Notes Lien with respect to the maintenance of the CollateralNotes, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Notes Liens with respect to the Notes or Collateral Security Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, Trustee as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfactionor as required or permitted by the Security Documents, the Collateral Agent will shall not be obligated:
(i1) to act upon directions purported to be delivered to it by any other Person;
(ii2) to foreclose upon or otherwise enforce any Notes Lien created under with respect to the Collateral DocumentsNotes and the Guarantees; or
(iii3) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the LiensNotes Liens with respect to the Notes and the Guarantees, Collateral Security Documents or Collateral.
(d) The Collateral Agent will shall be accountable only for amounts that it actually receives as a result of the enforcement of the Notes Liens with respect to the Notes, the Guarantees or Collateral the Security Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral DocumentsAgent, the Collateral Agent shall be entitled to conclusively may rely upon and enforce for its own benefit each and all of the rights, privilegespowers, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 hereof, each of which shall also be deemed to “Trustee” shall be references to “for the benefit of the Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, Trustee copies of all Collateral Security Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Security Documents.
(g) Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Security Documents, the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth in this Indenture and in the Security Documents, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Trustee, any Holder, the Company or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the 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 Indenture with reference to the Collateral Agent shall not 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 Indenture and the Security Documents, the Collateral Agent shall exercise or refrain 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 and the Security Documents, including the exercise or remedies pursuant to Article 6, and any action so taken or not taken shall be deemed consented to by the Trustee and the Holders.
Appears in 2 contracts
Sources: Indenture (Cinemark Usa Inc /Tx), Indenture (Cinemark Holdings, Inc.)
Collateral Agent. (a) The Collateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.028.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents Collateral Agents as it deems necessary or appropriate; provided, however, that no collateral agent Collateral Agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent Collateral Agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Collateral Notes Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including without limitation not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or the Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including without limitation, the filing of any UCC financing statements, continuation statements, Mortgages or amendments, or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or Holders holding at least 60% in aggregate principal amount of the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time Notes (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to Trustee or any representatives of the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, Trustee as required or permitted by this Indenture and any other representativesIndenture, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions direction purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Notes Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”of this Indenture.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the entity serving as Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, Trustee copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.
(g) Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Notes Documents, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the 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 Trustee, any Holder, or any other party, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the 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 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.
(h) 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.”
(i) No provision of this Indenture or any Collateral Document shall require the Collateral 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 Holders or the Trustee unless it shall have received indemnity or security satisfactory to 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 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 any mortgage 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. The Collateral Agent shall at any time be entitled to cease taking any action described in this clause (i) if it no longer reasonably deems any indemnity, security or undertaking from the Company or the Holders to be sufficient.
(j) 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, 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 is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any obligation for the benefit of another, which in the Collateral Agent’s sole discretion may cause it to be considered an “owner or operator” under the provisions of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §9601, et seq., or otherwise cause it to incur liability under CERCLA or any other federal, state or local law, the Collateral Agent and reserves the right, instead of taking such action, to either resign or arrange for the transfer of the title or control of the asset to a court-appointed receiver. Neither the Collateral Agent nor the Trustee shall be liable to any person for any environmental claims or contribution actions 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 discharge, release or threatened release of hazardous materials into the environment.
Appears in 2 contracts
Sources: Indenture (SunPower Inc.), Indenture (SunPower Inc.)
Collateral Agent. (a) The U.S. Bank National Association shall initially act as Collateral Agent agrees that it will hold the security interests and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Collateral created under Security Documents or the Collateral Documents to which it is a party as contemplated by this IndentureIntercreditor Agreements, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor neither the Collateral Agent nor any of their respective its officers, directors, employees, attorneys employees or agents will shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose collect or realize upon or otherwise enforce any of the Liens Notes Collateral or Collateral Documents or for any delay in doing soso or shall be under any 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 Notes Collateral or any part thereof. Neither Notwithstanding any provision to the Trustee nor contrary contained elsewhere in this Indenture, the Intercreditor Agreements or the Security Documents, the duties of the Collateral Agent nor any of their respective officersshall be ministerial and administrative in nature, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain and the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations responsibilities, except those expressly set forth in this Indenture, in the Note Intercreditor Agreements and in the Security Documents to which it 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 Trustee, any Holder, the Issuer or any Guarantor, and its duties hereunder no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be administrative in natureread into this Indenture, the Intercreditor Agreements or the Security Documents or shall otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoingforegoing sentence, the use of the term “agent” herein or “Agent” in this Indenture, the Intercreditor Agreements and in the other Note 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 and insteadapplicable 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement 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 or gross negligence (as determined by a final, non-appealable order of a court of competent jurisdiction).
(b) The Collateral Agent is authorized and directed to (i) enter into the Security Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the 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 Liens 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 DocumentsAgent in connection with any action required or permitted by this Indenture, the Security Documents or the Intercreditor Agreements.
(e) In acting as The Collateral Agent hereunder and under 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, a Holder 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 or the Holders of a majority in aggregate principal amount of the Securities subject to this Article 11.
(f) No provision of this Indenture or any Security Document shall require the Collateral Agent (or the Trustee) 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 Holders (or the 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.
(g) The Collateral Agent shall not be responsible in any manner to any of the Trustee or any Holder for the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents or the Intercreditor Agreements or for any failure of the Issuer, 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 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 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 shall be entitled may hold or obtain indicia of ownership primarily to conclusively rely upon and enforce each and all protect the security interest of the rights, privileges, immunities, indemnities Collateral Agent in the Notes Collateral and benefits of the Trustee under Article 7; provided that any references such actions taken by the Collateral Agent shall not be construed as or otherwise constitute any participation in the management of such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”Notes Collateral.
(fi) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by two Officers pursuant to this Section 11.09(i) (a “Security Document Order”), the Collateral Agent is hereby authorized to execute 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) 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 rely uponall of the protections, immunities, indemnities, rights and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by privileges of the proper Person (whether or not such Person in fact meets the requirements Trustee set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof)this Indenture, and may act upon any all such statement prior to receipt of written confirmation thereof protections, immunities, indemnities, rights and privileges shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered apply to the Collateral Agent and copies of all documents delivered to in its roles under any Security Document or the Collateral Agent pursuant to the Collateral DocumentsIntercreditor Agreements, whether or not expressly stated therein.
Appears in 2 contracts
Collateral Agent. (a) The Each of the Lender Parties hereby irrevocably appoints the Collateral Agent agrees that it will hold as its agent hereunder and under the security interests in other Loan Documents and authorizes the Collateral created under Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Documents to which Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Person serving as Collateral Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting were not the Collateral Agent’s rights, including under this Section 17.02and such Person and its Affiliates may accept deposits from, lend money to act and generally engage in preservation any kind of business with the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one Loan Parties or more co-collateral agents any Subsidiary of a Loan Party or other Affiliate thereof as if it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor were not the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing sohereunder. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in natureLoan Documents. Without limiting the generality of the foregoing, (1a) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in the other Note Documents with reference to the Collateral Agent is not intended to connote any fiduciary or other implied continuing; (or express) obligations arising under agency doctrine of any Applicable Law and 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, (2b) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are as expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed set forth in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents)this Agreement; provided that the 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 Note Document or Applicable Laws, and (3c) except as expressly set forth in the Note Documents to which it is a partyLoan Documents, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Loan Party or any of its Affiliates the Subsidiaries that is communicated to or obtained by the Person serving as the Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth hereinmisconduct. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document; (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document; (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document; (iv) the adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality, validity, enforceability, effectiveness, adequacy or genuineness of any Loan Document or any other agreement, instrument or document; (vi) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; or (vii) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to act upon directions purported confirm receipt of items expressly required to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) . The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any representation, notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) communication reasonably believed by it to be genuine genuine, correct and to have been signedauthorized, signed or sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereonPerson. The Collateral Agent may consult with legal counselcounsel (who may be counsel for the Borrowers), independent accountants and other experts reasonably 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.
(g) At . The Collateral Agent may perform any and all times when the Trustee is not itself its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Collateral Agent, Agent in its reasonable discretion. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the Company will deliver preceding paragraphs shall apply to any such sub-agent and to the Trustee, which shall deliver to the Holders Related Parties of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies any such sub-agent, and shall apply to their respective activities in connection with the syndication of all documents delivered the credit facilities provided for herein as well as activities as 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 Lenders, the Administrative Agent, the Issuing Banks and the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower Representative (such consent not to be unreasonably withheld or delayed) in the absence of continuing Event of Default, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and the Borrower Representative 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 Lender Parties, appoint a successor Collateral Agent which shall be a commercial bank or an Affiliate of any such commercial bank, in either case acceptable to the Borrower Representative in the absence of a continuing Event of Default (such acceptance not to be unreasonably withheld or delayed). 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, obligations and duties of the retiring (or retired) Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and successor Collateral Agent. After any Collateral Agent’s resignation hereunder, the provisions of this Article, Sections 2.18(c) and 9.03 shall continue in effect for the benefit of such retiring Collateral Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Collateral Agent. Each Lender Party hereby agrees that (a) it has requested a copy of each Report prepared by or on behalf of the Collateral Agent; (b) the Collateral Agent (i) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Loan Parties and will rely significantly upon the Loan Parties’ books and records, as well as on representations of the Loan Parties’ personnel and that the Collateral Agent undertakes no obligation to update, correct or supplement the Reports; and (d) it will not share the Report with any Loan Party or any other Person, and will otherwise keep all Reports confidential in accordance with Section 9.12, except as otherwise permitted pursuant to the Collateral Documentsthis Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Pilgrims Pride Corp), Credit Agreement (Pilgrims Pride Corp)
Collateral Agent. (a) The Trustee shall initially act as Collateral Agent agrees that it will hold the security interests and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Collateral created under the Collateral Documents to which it is a party as contemplated by this IndentureSecurity Documents, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor neither the Collateral Agent nor any of their its respective officers, directors, employees, attorneys employees or agents will shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose collect or realize upon or otherwise enforce any of the Liens Collateral or Collateral Documents or for any delay in doing so. Neither the Trustee nor the Collateral Agent nor so or shall be under any of their respective officers, directors, employees, attorneys obligation to sell or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing otherwise dispose of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at upon the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon Person or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to the Collateral or any or all of the Liens, Collateral Documents or Collateral.
(d) part thereof. The Collateral Agent will shall be accountable only for amounts that it actually receives as a result of the enforcement exercise of such powers, and neither the Liens Collateral Agent nor any of its officers, directors, employees or Collateral Documentsagents shall be responsible for any act or failure to act hereunder, except for its own willful misconduct, gross negligence or bad faith.
(eb) In acting The Trustee, as Collateral Agent hereunder Agent, is authorized and directed to (i) enter into the Security Documents, (ii) enter into the Intercreditor Agreement, (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreement and (iv) perform and observe its obligations under the Security Documents and the Intercreditor Agreement.
(c) If the Company (i) incurs Indebtedness constituting Credit Agreement Obligations at any time when no Intercreditor Agreement is in effect or at any time when Indebtedness constituting Credit Agreement Obligations entitled to the benefit of an existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Collateral DocumentsAgent 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 be entitled to conclusively rely upon (and enforce each is hereby authorized and all of directed to) enter into such Intercreditor Agreement, bind the rightsHolders on the terms set forth therein, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” perform and any references to “negligence” shall be references to “gross negligence”observe its obligations thereunder.
(fd) The If (i) the Company at any time incurs any Indebtedness constituting Other Second-Lien Obligations, (ii) the indenture or agreement governing such Indebtedness provides that, notwithstanding the date, manner or order of grant, attachment or perfection of any Liens granted to the Collateral Agent under the Security Documents (the "Liens Securing Note Obligations") or granted to the holders of Other Second-Lien Obligations or any agent or representative for the holders of Other Second-Lien Obligations (the "Liens Securing Other Second-Lien Obligations"), the Liens Securing Note Obligations and the Liens Securing Other Second-Lien Obligations shall be entitled of equal dignity, priority and rank, (iii) the Company delivers to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone an Officers' Certificate so stating and believed by it to have been made by requesting that the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants assign or transfer the Liens Securing Note Obligations to a Common Collateral Agent identified therein 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.
(giv) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered delivers to the Collateral Agent and copies the Common Collateral Agent an Opinion of Counsel further confirming as to all documents delivered 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 Liens Securing Note Obligations shall be of equal dignity, priority and rank with all such Liens Securing Other Second-Lien Obligations and (B) the Collateral Agent pursuant shall, upon receipt of the necessary or proper documentation prepared by the Company, assign or transfer the Liens Securing Note Obligations to the Common Collateral DocumentsAgent as requested in such Officers' Certificate.
Appears in 1 contract
Sources: Indenture (Pierson Industries Inc)
Collateral Agent. (a) The Trustee shall act as Collateral Agent agrees that it will hold the security interests and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Collateral created under the Collateral Documents to which it is a party as contemplated by this IndentureSecurity Documents, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor neither the Collateral Agent nor any of their its respective officers, directors, employees, attorneys employees or agents will shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose collect or realize upon or otherwise enforce any of the Liens Collateral or Collateral Documents or for any delay in doing so. Neither the Trustee nor the Collateral Agent nor so or shall be under any of their respective officers, directors, employees, attorneys obligation to sell or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing otherwise dispose of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at upon the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon Person or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to the Collateral or any or all of the Liens, Collateral Documents or Collateral.
(d) part thereof. The Collateral Agent will shall be accountable only for amounts that it actually receives as a result of the enforcement exercise of such powers, and neither the Liens Collateral Agent nor any of its officers, directors, employees or Collateral Documentsagents shall be responsible for any act or failure to act hereunder, except for its own willful misconduct, negligence or bad faith.
(eb) In acting The Trustee, as Collateral Agent hereunder Agent, is authorized and directed to (i) enter into the Security Documents, (ii) enter into the Intercreditor Agreement, (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreement and (iv) perform and observe its obligations under the Security Documents and the Intercreditor Agreement.
(c) If the Company (i) incurs Indebtedness constituting Senior Debt at any time when no Intercreditor Agreement is in effect or at any time when Indebtedness constituting First-Lien Obligations entitled to the benefit of an existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Collateral DocumentsAgent an Officer’s Certificate so stating and designating such Senior Debt as First-Lien Obligations 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 be entitled to conclusively rely upon (and enforce each is hereby authorized and all of directed to) enter into such Intercreditor Agreement and other documents referenced in the rightsIntercreditor Agreement in connection therewith, privilegesbind the Holders on the terms set forth therein, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” perform and any references to “negligence” shall be references to “gross negligence”observe its obligations thereunder.
(fd) The Collateral Agent shall be entitled to rely uponIf (i) the Company at any time incurs any Indebtedness constituting Other Second-Lien Obligations, and shall not incur any liability for relying upon(ii) the indenture or agreement governing such Indebtedness provides that, any noticenotwithstanding the date, requestmanner or order of grant, certificate, consent, statement, instrument, document attachment or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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 perfection of any such counsel, accountants or experts.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered Liens granted to the Collateral Agent under the Security Documents (the “Liens Securing Note Obligations”) or granted to the holders of Other Second-Lien Obligations or any agent or representative for the holders of Other Second-Lien Obligations (the “Liens Securing Other Second-Lien Obligations”), the Liens Securing Note Obligations and copies the Liens Securing Other Second-Lien Obligations shall be of all equal dignity, priority and rank, (iii) the Company delivers to the Collateral Agent an Officer’s Certificate so stating and requesting that the Collateral Agent serve as collateral agent and enter into security documents delivered with respect thereto and (iv) the Company delivers to the Collateral Agent an Opinion of Counsel stating that, in the opinion of such counsel, the Collateral Agent is empowered and obligated (on substantially the terms applicable to the Collateral Agent pursuant to the Indenture Documents) to hold the Liens Securing Note Obligations and all Liens Securing Other-Second Lien Obligations and all proceeds of all such Liens for the equal and ratable benefit of the holders of all Obligations secured thereby, giving effect to the assignment or transfer requested in such Officer’s Certificate, then (A) the Liens Securing Note Obligations shall be of equal dignity, priority and rank with all such Liens Securing Other Second-Lien Obligations and (B) the Collateral DocumentsAgent shall enter into such security documents as requested in such Officer’s Certificate.
Appears in 1 contract
Sources: Senior Subordinated Loan Agreement (J Crew Group Inc)
Collateral Agent. (a) The Collateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, Trustee and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation each of the security interest in Holders by acceptance of the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason Securities hereby authorize the appointment of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral Agent nor as the Trustee’s and the Holders’ Collateral Agent under the Security Documents and in its capacity as mortgagee and security trustee pursuant to the Collateral Rig Mortgages, 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 to take such action on their behalf under the provisions of the Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Security Documents, together with such powers as are reasonably incidental thereto. Notwithstanding any of their respective officersprovision to the contrary contained elsewhere in this Indenture and the Security Documents, 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 duties of the Collateral DocumentsAgent shall be ministerial and administrative in nature, for and the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations responsibilities, except those expressly set forth herein and in the Note Security Documents to which it the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or fiduciary relationship with the Trustee, any Holder, the Company, any Collateral Grantor or any Guarantor, and its duties hereunder no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be administrative in natureread into this Indenture and the Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoingforegoing sentence, the use of the term “agent” herein and in the other Note Documents this 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 and insteadapplicable 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights . The Trustee is authorized and powers that are expressly contemplated directed by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, Holders and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders by acquiring the Securities are deemed to have authorized the Trustee, as shall be necessaryapplicable, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose cause the Collateral Agent to liability or that enter into and perform its obligations under the Security Documents. The Collateral Agent is contrary authorized and directed by the Trustee and the Holders and the Holders by acquiring the Securities are deemed to any Note Document or Applicable Lawshave authorized the Collateral Agent, and to (3i) except as expressly set forth in enter into the Note Security Documents to which it is a party, (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, including entering into amendments, supplements and other modifications permitted by the terms of this Indenture or the Security Documents. Each Holder, by its acceptance of a Security, 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 Indenture. Each of the Holders by acquiring the Securities is hereby deemed to have directed the Trustee to appoint the Collateral Agent shall not have any duty as its mortgagee and security trustee to disclosereceive, hold, administer and shall not be liable for enforce the failure to discloseCollateral Rig Mortgages covering the Collateral Rigs, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacitycontemplated under this Indenture. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge or notice of the occurrence of any Default or Event of Default Default, unless and until the Collateral Agent shall have received written notice thereof (stating that it is from the Trustee or unless a “written notice of default” any event which is in fact such a Default is received by the Collateral Agent at the address specified in Section 14.01, and describing such notice references the Securities and this Indenture. The Collateral Agent shall take such action with respect to such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions Default as may be given to it requested by the Trustee, Trustee in accordance with Article 6 or the Administrative Determination Holder(s), and prior Holders of a majority in aggregate principal amount of the Securities (subject to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this IndentureSection 12.05). The Collateral Agent will shall have no obligation and makes no representation whatsoever to the Trustee or any of the Holders as to the existence, genuineness, value or protection of the Collateral or the sufficiency of any Security Documents, or that the Collateral is owned by any of the Collateral Grantors 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 of the Collateral Grantor’s property constituting Collateral intended to be subject to such directions the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be given to it by the Trustee be, or the Administrative Determination Holder(s)genuineness, and prior validity, marketability or sufficiency thereof or title thereto, or to the Braidwell Disposition Dateexercise at all or in any particular manner or under any duty of care, the Braidwell Holdersdisclosure or fidelity, and prior or to the Deerfield Disposition Datecontinue exercising, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) The Collateral Agent shall be entitled to rely uponauthorities, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document powers granted or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered available to the Collateral Agent pursuant to this Indenture or any other Security Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral DocumentsAgent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act. For the avoidance of doubt, nothing herein shall require the Collateral Agent 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 perfection of the security interests purported to be created by the Security Documents and such responsibility shall be solely that of the Company. Each of 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 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.
Appears in 1 contract
Sources: Indenture (Transocean Ltd.)
Collateral Agent. (a) The Collateral Agent agrees that it will hold shall have all the security interests rights and protections provided in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunderSecurity Documents.
(b) Neither Subject to Section 7.01, neither the Trustee nor the Collateral 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, effectiveness or sufficiency of the Collateral Security Documents, for obtaining or maintaining insurance on any Collateral, for the creation, perfection, priority, sufficiency or protection of any Second Priority Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters. Beyond the exercise of reasonable care in the custody thereof, the Trustee shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Trustee, in its capacity as such, 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 maintaining the perfection of any Lien on the Collateral. The Trustee and the Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment equal to that which it accords its own property and shall not be liable or responsible for any failure to demand, collect, foreclose loss or realize upon or otherwise enforce diminution in the value of any of the Liens Collateral, by reason of the act or Collateral Documents omission of any carrier, forwarding agency or any delay in doing so. Neither other agent or bailee selected by the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Officegood faith.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in Subject to the Note Security Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoingIntercreditor Agreement, (1i) the Trustee shall direct the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3ii) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicableTrustee, as required or permitted by this Indenture and any other representatives, and only if indemnified or pursuant to its satisfactionthe Security Documents, the holders acknowledge that Collateral Agent will not be obligated:
(i1) to act upon directions purported to be delivered to it by any other Person;
(ii2) to foreclose upon or otherwise enforce any Lien created under the Collateral DocumentsSecond Priority Lien; or
(iii3) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Second Priority Liens, Collateral Security Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts holders of Notes agree that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, protections, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent by the Security Documents. Furthermore, each holder of a Note, by accepting such Note, consents to the terms of and copies authorizes and directs the Trustee (in each of all documents delivered its capacities) and the Collateral Agent to enter into and perform the Intercreditor Agreement and Security Documents in each of its capacities thereunder.
(e) If the Issuers (i) Incur First Priority Lien Obligations in compliance with this Indenture at any time when the Intercreditor Agreement is not 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, and (ii) direct the Trustee to deliver to the Collateral Agent pursuant to an Officer’s Certificate so stating and requesting the Collateral DocumentsAgent to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement in effect on the Issue Date) in favor of a designated agent or representative for the holders of the First Priority Lien Obligations so Incurred, 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.
Appears in 1 contract
Sources: Indenture (Vici Properties Inc.)
Collateral Agent. (a) The Issuers and the Guarantors hereby appoint Regions Bank to act as Collateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this IndentureAgent, and each Holder, by its acceptance of any Notes and all proceeds the Notes Guarantees thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, irrevocably consents and agrees to act in preservation of the security interest in the Collateralsuch appointment. The Collateral Agent is authorized shall have the privileges, powers and empowered immunities as set forth in this Indenture and the other Security Documents. Notwithstanding any provision to appoint one the contrary contained elsewhere in this Indenture or more co-collateral agents as it deems necessary or appropriate; providedthe other Security Documents, however, that no collateral agent hereunder shall be personally liable by reason the duties of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral Agent nor any of their respective officersshall be ministerial and administrative in nature, directors, employees, attorneys or agents will be responsible or liable for and the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations responsibilities, except those expressly set forth herein and in the Note other Security Documents to which it 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 Trustee, any Holder, the Issuers or any Guarantor, and its duties hereunder no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be administrative in natureread into this Indenture or the other Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoingforegoing sentence, the use of the term “agent” herein and in the other Note Documents this 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 and insteadLaw. 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, (2) . The Issuers and the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided Guarantors hereby agree that the Collateral Agent shall not be hold the Collateral on behalf of and for the benefit of all of the Holders, the Trustee and the Collateral Agent, in each case pursuant to the terms of the Security Documents, and the Collateral Agent and the Trustee are hereby directed and authorized by the Holders to execute and deliver the Intercreditor Agreements and the other Security Documents, as applicable. The Collateral Agent shall have no liability for any action taken, or errors in judgment made, in good faith by it or any of its officers, employees or agents, unless it shall have acted with willful misconduct or been grossly negligent in ascertaining the pertinent facts.
(b) In each case that the Collateral Agent may or is required hereunder or under any Security Document or any Intercreditor Agreement to take any action that(an “Action”), in its opinion including without limitation to make any determination, to give consents, to exercise rights, powers or the opinion of its counselremedies, may expose the to release or sell Collateral Agent or otherwise to liability act hereunder or that is contrary to under any Note Security Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a partyany Intercreditor Agreement, the Collateral Agent shall not have any duty to disclose, and shall not be liable for may seek direction from the failure to disclose, any information relating to any Note Party or any Holders of its Affiliates that is communicated to or obtained by a majority in aggregate principal amount of the Person serving as Collateral Agent or any of its Affiliates in any capacitythen outstanding Notes. The Collateral Agent shall not be liable for with respect to any action Action taken or not omitted to be taken by it in accordance with the consent or at direction from the request Holders of a majority in aggregate principal amount of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (then outstanding Notes other than its willful misconduct or gross negligence in carrying out such other number or percentage of the Holders as shall be necessary, or as direction. If the Collateral Agent shall believe request direction from the Holders of a majority in good faith aggregate principal amount of the then outstanding Notes with respect to any Action, the Collateral Agent shall be necessary, under entitled to refrain from such Action unless and until the circumstances as provided in Collateral Agent shall have received direction from the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment Holders of a court majority in aggregate principal amount of competent jurisdictionthe then outstanding Notes, in connection with its duties expressly set forth herein. and the Collateral Agent shall not incur liability to any Person by reason of so refraining.
(c) The Collateral Agent shall be deemed not fully justified in failing or refusing to have knowledge take any Action unless it shall first receive such advice or concurrence of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s)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 prior all liability and expense which may be incurred by it by reason of taking or continuing to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture)take any such Action. Except as directed by otherwise provided in the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfactionSecurity Documents, the Collateral Agent will not shall in all cases be obligated:
(i) fully protected in acting, or in refraining from acting, under this Indenture, the other 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 directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or CollateralHolders.
(d) The Collateral Agent will shall take such action with respect to such Default or Event of Default as may be accountable only for amounts that it actually receives as requested by the Trustee in accordance with Article 6 or the Holders of a result majority in aggregate principal amount of the enforcement Notes (subject to this Section 11.01), subject to the terms of the Liens or Collateral Security Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) The Collateral Agent shall be entitled may resign at any time by notice to rely uponthe Trustee and the Company, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it such resignation to be genuine and effective upon the acceptance of a successor agent to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The its appointment as Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereonAgent. The Collateral Agent may consult with legal counselbe removed by the Company at any time, 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.
(g) At all times when the Trustee is not itself upon thirty days written notice to the Collateral Agent. If the Collateral Agent resigns or is removed under this Indenture, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.appoint a successor collateral agent. If no
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Collateral Agent. (a) The U.S. Bank National Association shall initially act as Collateral Agent agrees that it will hold the security interests and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Collateral created under Security Documents or the Collateral Documents to which it is a party as contemplated by this IndentureIntercreditor Agreements, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor neither the Collateral Agent nor any of their respective its officers, directors, employees, attorneys employees or agents will shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose collect or realize upon or otherwise enforce any of the Liens Notes Collateral or Collateral Documents or for any delay in doing so. Neither the Trustee nor the Collateral Agent nor so or shall be under any of their respective officers, directors, employees, attorneys obligation to sell or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing otherwise dispose of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Notes Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at upon the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon Person or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to the Notes Collateral or any or all of the Liens, Collateral Documents or Collateral.
(d) part thereof. The Collateral Agent will shall be accountable only for amounts that it actually receives as a result of the enforcement 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 or gross negligence (as determined by a final, nonappealable order of a court of competent jurisdiction). The Collateral Agent is not a fiduciary for the Trustee or the Holders.
(b) The Collateral Agent is authorized and directed to (i) enter into the Security Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Security Documents and the Intercreditor Agreements.
(c) If the Issuer or 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 Liens 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 DocumentsAgent in connection with any action required or permitted by this Indenture, the Security Documents or the Intercreditor Agreements.
(e) In acting as The Collateral Agent hereunder and under shall not be deemed to have knowledge or notice of the Collateral Documentsoccurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee, a Holder 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 entitled to conclusively rely upon and enforce each and all requested by the Trustee or the Holders of a majority in aggregate principal amount of the rights, privileges, immunities, indemnities and benefits of the Trustee under Securities subject to this Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”11.
(f) No provision of this Indenture or any Security Document shall require the Collateral Agent (or the Trustee) 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 Holders (or the 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.
(g) The Collateral Agent shall be entitled to rely uponall of the protections, immunities, indemnities, rights and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by privileges of the proper Person (whether or not such Person in fact meets the requirements Trustee set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof)this Indenture, and may act upon any all such statement prior to receipt of written confirmation thereof protections, immunities, indemnities, rights and privileges shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered apply to the Collateral Agent and copies of all documents delivered to in its roles under any Security Document or the Collateral Agent pursuant to the Collateral DocumentsIntercreditor Agreements, whether or not expressly stated therein.
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Collateral Agent. (a) The Issuer and the Guarantors hereby appoint Regions Bank to act as Collateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this IndentureAgent, and each Holder, by its acceptance of any Notes and all proceeds the Notes Guarantees thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, irrevocably consents and agrees to act in preservation of the security interest in the Collateralsuch appointment. The Collateral Agent is authorized shall have the privileges, powers and empowered immunities as set forth in this Indenture and the other Security Documents. Notwithstanding any provision to appoint one the contrary contained elsewhere in this Indenture or more co-collateral agents as it deems necessary or appropriate; providedthe other Security Documents, however, that no collateral agent hereunder shall be personally liable by reason the duties of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral Agent nor any of their respective officersshall be ministerial and administrative in nature, directors, employees, attorneys or agents will be responsible or liable for and the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations responsibilities, except those expressly set forth herein and in the Note other Security Documents to which it 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 Trustee, any Holder, the Issuer or any Guarantor, and its duties hereunder no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be administrative in natureread into this Indenture or the other Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoingforegoing sentence, the use of the term “agent” herein and in the other Note Documents this 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 and insteadLaw. 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, (2) . The Issuer and the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided Guarantors hereby agree that the Collateral Agent shall not be hold the Collateral on behalf of and for the benefit of all of the Holders, the Trustee and the Collateral Agent, in each case pursuant to the terms of the Security Documents, and the Collateral Agent and the Trustee are hereby directed and authorized by the Holders to execute and deliver the Intercreditor Agreements and the other Security Documents, as applicable. The Collateral Agent shall have no liability for any action taken, or errors in judgment made, in good faith by it or any of its officers, employees or agents, unless it shall have acted with willful misconduct or been grossly negligent in ascertaining the pertinent facts.
(b) In each case that the Collateral Agent may or is required hereunder or under any Security Document, including any Intercreditor Agreement, to take any action that(an “Action”), in its opinion including without limitation to make any determination, to give consents, to exercise rights, powers or the opinion of its counselremedies, may expose the to release or sell Collateral Agent or otherwise to liability act hereunder or that is contrary to under any Note Document or Applicable LawsSecurity Document, and (3) except as expressly set forth in the Note Documents to which it is a partyincluding any Intercreditor Agreement, the Collateral Agent shall not have any duty to disclose, and shall not be liable for may seek direction from the failure to disclose, any information relating to any Note Party or any Holders of its Affiliates that is communicated to or obtained by a majority in aggregate principal amount of the Person serving as Collateral Agent or any of its Affiliates in any capacitythen outstanding Notes. The Collateral Agent shall not be liable for with respect to any action Action taken or not omitted to be taken by it in accordance with the consent or at direction from the request Holders of a majority in aggregate principal amount of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (then outstanding Notes other than its willful misconduct or gross negligence in carrying out such other number or percentage of the Holders as shall be necessary, or as direction. If the Collateral Agent shall believe request direction from the Holders of a majority in good faith aggregate principal amount of the then outstanding Notes with respect to any Action, the Collateral Agent shall be necessary, under entitled to refrain from such Action unless and until the circumstances as provided in Collateral Agent shall have received direction from the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment Holders of a court majority in aggregate principal amount of competent jurisdictionthe then outstanding Notes, in connection with its duties expressly set forth herein. and the Collateral Agent shall not incur liability to any Person by reason of so refraining.
(c) The Collateral Agent shall be deemed not fully justified in failing or refusing to have knowledge take any Action unless it shall first receive such advice or concurrence of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s)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 prior all liability and expense which may be incurred by it by reason of taking or continuing to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture)take any such Action. Except as directed by otherwise provided in the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfactionSecurity Documents, the Collateral Agent will not shall in all cases be obligated:
(i) fully protected in acting, or in refraining from acting, under this Indenture, the other 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 directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or CollateralHolders.
(d) The Collateral Agent will shall take such action with respect to such Default or Event of Default as may be accountable only for amounts that it actually receives as requested by the Trustee in accordance with Article 6 or the Holders of a result majority in aggregate principal amount of the enforcement Notes (subject to this Section 11.01), in each case, subject to the terms of the Liens or Collateral Security Documents.
(e) In acting 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. The Collateral Agent hereunder and under may be removed by the Issuer at any time, upon thirty (30) days written notice to the Collateral DocumentsAgent. If the Collateral Agent resigns or is removed under this Indenture, the Issuer shall appoint a successor collateral agent. If no successor collateral agent is appointed and has accepted such appointment within thirty (30) days after the Collateral Agent gave notice of resignation or was removed, the retiring Collateral Agent may (at the expense of the Issuer), at its option, appoint a successor Collateral Agent or petition a court of competent jurisdiction for the appointment of 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” shall mean such successor collateral agent, and the retiring or removed Collateral Agent’s appointment, powers and duties as the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of terminated. After the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “retiring Collateral Agent” ’s resignation or removal hereunder, the provisions of this Section 11.01 (and any references Section 7.08) shall continue to “negligence” shall be references inure to “gross negligence”.
(f) The its benefit and the retiring or removed Collateral Agent shall not by reason of such resignation or removal 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it deemed to be genuine and released from liability as to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants and other experts selected by it, and shall not be liable for any action actions taken or not omitted to be taken by it in accordance with the advice of any such counsel, accountants or experts.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to while it was the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documentsunder this Indenture.
Appears in 1 contract
Collateral Agent. (a) The Collateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it Wilmington Trust, National Association is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the hereby appointed Collateral Agent’s rights, including under this Section 17.02, . Subject to act in preservation the applicable provisions of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more coSecond-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Lien Notes Collateral Documents, for the creationeach Holder, perfection, priority, sufficiency or protection by acceptance of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(cits Note(s) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, agrees that (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred execute and is continuing and, without limiting deliver the generality of Second-Lien Notes Collateral Documents and act in accordance with the foregoing, the use of the term “agent” herein and in 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 and 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 partiesterms thereof, (2) the Collateral Agent shall not have may, upon the instruction, or with the consent, of the Trustee or the Holders, take all actions it deems necessary or appropriate in order to (i) enforce any duty to take of the terms of the Second-Lien Notes Collateral Documents and (ii) collect and receive any discretionary action or exercise any discretionary powersand all amounts payable in respect of the Obligations of the Issuer and the Guarantors hereunder and under the Notes, except discretionary rights and powers that are expressly contemplated by the Note Guarantees and the Second-Lien Notes Collateral Documents that, subject and (3) to the terms hereofextent permitted by this Indenture, the Collateral Agent is required shall have power to exercise as directed institute and to maintain such suits and proceedings upon the instruction of the Trustee to prevent any impairment of the Collateral by any act that may be unlawful or in writing by violation of the Administrative Determination Holder(s)Second-Lien Notes Collateral Documents or this Indenture, prior and suits and proceedings upon the instruction of the Trustee to preserve or protect its interests and the interests of the Trustee and the Holders in the Collateral (including the power to institute and maintain suits or proceedings to restrain the enforcement of or 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 thereunder or be prejudicial to the Braidwell Disposition Dateinterests of the Collateral Agent, the Braidwell HoldersHolders or the Trustee). Notwithstanding the foregoing, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe not be obligated to take any such action without the direction of the Holders and may, at the expense of the Issuer, request the direction of the Holders with respect to any such actions and upon receipt of the written consent of the Holders of a majority in good faith aggregate principal amount of the outstanding Notes along with indemnity or security satisfactory to be necessarythe Trustee and the Collateral Agent, under the circumstances as provided in the Note Documents)shall take such actions; provided that all actions so taken shall, at all times, be in conformity with the requirements of the Intercreditor Agreement.
(b) Subject to the Second-Lien Notes Collateral Documents, the Trustee shall direct the Collateral Agent from time to time. Subject to the Second-Lien Notes Collateral Documents, except as directed by the Trustee as required or permitted by this Indenture, the Holders acknowledge that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i1) to act upon directions purported to be delivered to it by any other Person;
(ii2) to foreclose upon or otherwise enforce the Liens securing any Second-Lien created under the Collateral DocumentsObligations; or
(iii3) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the LiensSecond-Lien Obligations, the Second-Lien Notes Collateral Documents or the Collateral.
(c) The rights, privileges, protections, immunities and benefits given to the Trustee under this Indenture, including, without limitation, its right to be indemnified and compensated and all other rights, privileges, protections, immunities and benefits set forth in Sections 7.01, 7.02, 7.04 and 7.06, are extended to the Collateral Agent, and its agents and attorneys, and shall be enforceable by, the Collateral Agent, as if fully set forth in this Section 10.02 with respect to the Collateral Agent. Notwithstanding anything in this Indenture or the Second-Lien Notes Collateral Documents to the contrary, the Collateral Agent will not be required to advance or expend any funds or otherwise incur any financial liability in the performance of its duties or the exercise of its powers or rights hereunder unless it has been provided with security or indemnity satisfactory to it against any and all loss, liability or expense which may be incurred in connection with taking or continuing to take such action.
(d) Beyond the exercise of reasonable care in the custody of Collateral in its possession, the Collateral Agent will have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Collateral Agent will 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 maintaining the perfection of any Liens on the Collateral. The Collateral Agent will be accountable only for amounts deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it actually receives accords property held by it as a result collateral agent or any similar arrangement, and the Collateral Agent will not be liable or responsible for any loss or diminution in the value of any of the enforcement Collateral by reason of the Liens act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Documents.Agent in good faith
(e) In acting as The Collateral Agent hereunder and under will not be responsible for the existence, genuineness or value of any of the Collateral Documentsor for the validity, perfection, priority or enforceability of the Liens on 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, bad faith or willful misconduct (as determined by a final order of a court of competent jurisdiction that is not subject to appeal) on the part of the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all Agent, for the validity or sufficiency of the rightsCollateral or any agreement or assignment contained therein, privileges, immunities, indemnities and benefits for the validity of the Trustee under Article 7; provided that title, 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. The Collateral Agent hereby disclaims any references representation or warranty to any party, including the present and future Holders concerning the perfection of the Liens granted hereunder or in such Article 7 to “Trustee” shall be references to “Collateral Agent” and the value of any references to “negligence” shall be references to “gross negligence”of the Collateral.
(f) The Collateral Agent shall not be entitled required to rely upon, acquire title to an asset for any reason and shall not incur be required to carry out any liability fiduciary or trust obligation for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof)benefit of another. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or is not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof a fiduciary and shall not incur be deemed to have assumed any fiduciary obligation. If the Collateral Agent in its sole discretion believes that any obligation to take or omit to take any action may cause the Collateral Agent to be considered an “owner or operator” under any environmental laws or otherwise cause the Collateral Agent to incur, or be exposed to, any environmental liability or any liability under any other federal, state or local law, the Collateral Agent reserves the right, instead of taking such action, either to resign as Collateral Agent or to arrange for relying thereonthe transfer of the title or control of the asset to a court appointed receiver. The Collateral Agent may consult with legal counsel, independent accountants and other experts selected by it, and shall will not be liable to any Person for any action taken environmental liability or not taken any environmental claims or contribution actions under any federal, state or local law, rule or regulation by it in accordance with reason of the advice Collateral Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or release or threatened discharge or release of any such counsel, accountants or expertshazardous materials into the environment.
(g) At all times when The Collateral Agent may resign or be replaced in accordance with the procedures set forth in Section 7.07, except that references to the Trustee is not itself in such section shall be deemed to be references to the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to . If the Collateral Agent and copies consolidates, merges or converts into, or transfers all or substantially all of all documents delivered to its corporate trust business to, another corporation, the successor corporation without any further act will be the successor Collateral Agent pursuant to the Collateral DocumentsAgent.
Appears in 1 contract
Sources: Indenture (Walter Energy, Inc.)
Collateral Agent. (a) The Collateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral10.1. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth herein and in the Note Documents to which it is a party, and its duties hereunder shall be administrative in natureGuaranty. Without limiting the generality of the foregoing, (1) the Collateral Agent Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing continuing; and, without limiting the generality of the foregoing, the use of the term “agent” herein and in the other Note Documents with reference to the Collateral Agent is not intended to connote any fiduciary or other implied
(or expressb) obligations arising under agency doctrine of any Applicable Law and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated hereby or by the Note Documents thatGuaranty, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the Collateral Agent shall not be required to take any action that(i) that in its reasonable opinion is or may be contrary to law or to the terms of this Security Agreement or any other Transaction Document or any other agreement or instrument relating to the Collateral, or which might or would in its reasonable opinion subject it or any of its directors, officers, employees or agents to personal or financial liability or (ii) unless it is indemnified hereunder to its satisfaction (and if any indemnity should become, in its opinion or the opinion determination of its counsel, may expose the Collateral Agent to liability or that is contrary to any Note Document or Applicable LawsAgent, and (3) except as expressly set forth in the Note Documents to which it is a partyinadequate, the Collateral Agent shall not have any duty may call for additional indemnity and cease to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that act until such additional indemnity is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacitygiven); and
10.2. The Collateral Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders Required Secured Parties (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documentsdefined below) or (ii) in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth hereinmisconduct.
10.3. The Collateral Agent shall not be deemed not responsible for or have any duty to have knowledge ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Security Agreement or any other Transaction Document, (ii) the contents of any Default certificate, report or Event other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of Default unless and until written notice thereof (stating that it is a “notice any of default” and describing such Default the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Event of Default, (iv) is given the validity, enforceability, effectiveness or genuineness of this Security Agreement, any other Transaction Document or any other agreement, instrument or document, or the creation, perfection or priority of any lien purported to a Responsible Officer be created by the Transaction Documents, or (v) the value or the sufficiency of any Collateral, and the Collateral Agent by shall incur no liability or responsibility in respect of the Company or any Holderforegoing. The Collateral Agent will shall not be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, responsible for insuring the Collateral Agent will not be obligated:
(i) to act or for the payment of taxes, charges, assessments or liens upon directions the Collateral or for perfecting or maintaining the perfection of its security interest in the Collateral purported to be delivered to it by any Person;
(ii) to foreclose upon granted hereby or otherwise enforce any Lien created under as to the maintenance of the Collateral Documents; or
(iii) except as expressly provided in Section 17.03or any filings, to take any other action whatsoever with regard to any or all including filings of the Liens, Collateral Documents or CollateralUCC continuation statements.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 10.4. 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof)Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof)Person, and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal may, in its sole discretion, retain counsel, independent accountants and other experts selected by itit and may act in reliance upon the advice of such counsel, independent accountants and other experts concerning all matters pertaining to the agencies hereby created and its duties hereunder, and shall be held harmless and shall not be liable for any action taken or not omitted to be taken by it in good faith in reliance upon or in accordance with the statements and advice of such counsel (or counsel to Grantor), accountants and other experts.
10.5. The Collateral Agent may at any time give notice of its resignation to the Secured Parties. Upon receipt of any such counselnotice of resignation, accountants the Required Secured Parties (as defined below) shall have the right to appoint a successor. If no such successor shall have been so appointed by the Required Secured Parties 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 Secured Parties, appoint a successor Collateral Agent; provided that if the retiring Collateral Agent shall notify the Secured Parties that no Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Collateral Agent shall be discharged from its duties and obligations hereunder and under the Guaranty and (b) all payments, communications and determinations provided to be made by, to or experts.
through the Collateral Agent shall instead be made by or to each Secured Party directly, until such time as the Required Secured Parties appoint a successor Collateral Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Collateral Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (gor retired) At all times when the Trustee is not itself the Collateral Agent, and the Company will deliver to retiring Collateral Agent shall be discharged from all of its duties and obligations hereunder or under the TrusteeGuaranty (if not already discharged therefrom as provided above in this Section). After the retiring Collateral Agent’s resignation, which the provisions of Sections 10 and 16 shall deliver to continue in effect for the Holders benefit of Notes, copies of all Collateral Documents delivered to the such retiring Collateral Agent and copies its related parties in respect of any actions taken or omitted to be taken by any of them while the retiring Collateral Agent was acting as Collateral Agent. For all purposes hereunder, the “Required Secured Parties” shall mean one or more Secured Parties holding Tranche A Notes and Tranche B Notes representing greater than seventy-five percent (75%) of the aggregate principal amount of all documents delivered to the Collateral Agent pursuant to the Collateral DocumentsTranche A Notes and Tranche B Notes then outstanding.
Appears in 1 contract
Sources: Security Agreement (X-Change Corp)
Collateral Agent. (a) The Collateral Agent agrees that it will hold the security interests Except as otherwise specifically provided herein, whenever reference is made in the Collateral created under this Indenture or the Collateral Documents (including any Acceptable Intercreditor Agreement) to which 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 a party 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 received written instruction, advice or concurrence from the Majority Holders (or Holders representing such number or percentage of outstanding aggregate principal of the Notes as contemplated by this Indentureshall be expressly provided for herein or in any other Collateral Document) in respect of such action and, and if it so requests, it shall first be indemnified to its satisfaction against any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, liability and expense which may be incurred by it by reason of taking or continuing to act in preservation of the security interest in the Collateraltake any such action. The Collateral Agent shall have no liability for any failure or delay in taking any actions contemplated above as a result of a failure or delay on the part of the Majority Holders or such Holders, as applicable, to provide such instruction, advice or concurrence. This provision is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason intended solely for the benefit of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral Agent nor and its successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any of their respective officersdefense, directors, employees, attorneys claim or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectivenesscounterclaim, or sufficiency confer any rights or benefits on any other party hereto. Subject to the foregoing (and the other provisions of this Section 12.07) and the terms of the Collateral Documents and any other applicable provisions of this Indenture, the Collateral Agent shall take such action with respect to any Default or Event of Default as may be requested by the Majority Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, or any of the Collateral Documents, for if applicable, the creation, perfection, priority, sufficiency or protection duties of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officersshall be ministerial and administrative in nature, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain and the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations responsibilities, except those expressly set forth herein and in the Note Collateral Documents to which it 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 Trustee, any Holder or any Grantor, and its duties hereunder no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be administrative in natureread into this Indenture, the Collateral Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoingforegoing sentence, the use of the term “agent” herein and in the other Note Documents this 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 and insteadapplicable 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 resign at any time by notice to the Trustee and the Company, (2) such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. The Collateral Agent may be removed by the Co-Issuers at any time, upon thirty days written notice to the Collateral Agent. If the Collateral Agent resigns or is removed under this Indenture, the Co-Issuers shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights appoint a successor collateral agent. If no successor collateral agent is appointed and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, has accepted such appointment within 30 days after the Collateral Agent gives notice of resignation or is required to exercise as directed in writing by removed, the Administrative Determination Holder(sretiring Collateral Agent may (at the expense of the Co-Issuers), prior at its option, appoint a successor Collateral Agent or petition a court of competent jurisdiction for the appointment of a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the Braidwell Disposition Daterights, powers and duties of the Braidwell Holdersretiring Collateral Agent, and prior to the Deerfield Disposition Dateterm “Collateral Agent” shall mean such successor collateral agent, and the Deerfield Holders (retiring or such number or percentage of the Holders as shall be necessaryremoved Collateral Agent’s appointment, or powers and duties as the Collateral Agent shall believe in good faith be terminated. After the retiring Collateral Agent’s resignation or removal hereunder, the provisions of this Section 12.07 (and Section 8.06) shall continue to be necessary, under inure to its benefit and the circumstances as provided in the Note Documents); provided that the retiring or removed Collateral Agent shall not by reason of such resignation or removal be required deemed to take be released from liability as to any action that, in its opinion actions taken or the opinion of its counsel, may expose omitted to be taken by it while it was the Collateral Agent to liability or that is contrary to any Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.
Appears in 1 contract
Collateral Agent. (a) The Collateral Agent agrees that it Each Debtor will hold comply with the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, terms and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason conditions of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to consent given by the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the foregoing sentence. During the existence of a Default, all items or amounts which are delivered by any Debtor to the U.S. Collateral DocumentsAgent on account of partial or full payment or otherwise as proceeds of any of the Collateral shall be deposited to the credit of a deposit account of such Debtor under which the U.S. Collateral Agent is the depositary bank (each an "Assignee Deposit Account"), as security for payment of the Liabilities. No Debtor shall have any right to withdraw any funds deposited in the applicable Assignee Deposit Account. The U.S. Collateral Agent may, from time to time, in its discretion, and shall upon request of the applicable Debtor made not more than once in any week, apply all or any of the then balance, representing collected funds, in the Assignee Deposit Account, toward payment of the Liabilities, whether or not then due, in such order of application as the U.S. Collateral Agent may determine, and the U.S. Collateral Agent may, from time to time, in its discretion, release all or any of such balance to the applicable Debtor. If and to the extent that a perfected security interest hereunder in any Collateral shall cease to be perfected for any reason whatsoever (including, without limitation, release of all or any balance in any Assignee Deposit Account or use or disposition by any Debtor of any proceeds of Collateral), then such Collateral (referred to in this paragraph as "released Collateral") shall be deemed thereby released from the security interest hereunder in exchange, as of the time of such release, for any other Collateral of equivalent value in which a perfected security interest hereunder is being obtained contemporaneously or has been most recently obtained, but only to the extent such other Collateral does not represent either (a) Collateral in exchange for which any previously released Collateral shall have been deemed released, or (b) Collateral of equivalent value to any loan or advance (otherwise than by renewal or extension) from the U.S. Collateral Agent to the Borrower in which Collateral a perfected security interest hereunder shall have been obtained contemporaneously with or most recently prior to such loan or advance. During the existence of a Default, the U.S. Collateral Agent is authorized to endorse, in the name of the applicable Debtor, any item, howsoever received by the U.S. Collateral Agent, representing any payment on or other proceeds of any of the Collateral.
Appears in 1 contract
Sources: Credit Agreement (United Rentals North America Inc)
Collateral Agent. (a) The U.S. Bank National Association shall initially act as Collateral Agent agrees that it will hold the security interests and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Collateral created under the Collateral Documents to which it is a party as contemplated by this IndentureSecurity Documents, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor neither the Collateral Agent nor any of their respective its officers, directors, employees, attorneys employees or agents will shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose collect or realize upon or otherwise enforce any of the Liens Collateral or Collateral Documents or for any delay in doing soso 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. Neither Notwithstanding any provision to the Trustee nor contrary contained elsewhere in this Indenture or the Security Documents, the duties of the Collateral Agent nor any of their respective officersshall be ministerial and administrative in nature, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain and the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations responsibilities, except those expressly set forth in this Indenture and in the Note Security Documents to which it 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 Trustee, any Holder, the Issuer or any Guarantor, and its duties hereunder no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be administrative in natureread into this Indenture or the Security Documents or shall otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoingforegoing sentence, the use of the term “agent” herein or “Agent” in this Indenture and in the other Note 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 and insteadapplicable 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement 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 or gross negligence (as determined by a final, non-appealable order of a court of competent jurisdiction).
(b) The Collateral Agent is authorized and directed to (i) enter into the Security Documents, (ii) bind the Holders on the terms as set forth in the Security Documents and (iii) perform and observe its obligations under the Security Documents.
(c) The Collateral Agent shall act pursuant to the instructions of the Liens Holders and the Trustee with respect to the Security Documents and the Collateral. For the avoidance of doubt, the Collateral Agent shall have no discretion under this Indenture 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 or the Security Documents.
(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, a Holder 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 or the Holders of a majority in aggregate principal amount of the Securities subject to this Article 11.
(e) In acting as No provision of this Indenture or any Security Document shall require the Collateral Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder and under or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Holders (or the 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 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 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 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 conclusively rely upon and enforce each and all of cease taking any action described in this Section 11.10(e) if it no longer reasonably deems any indemnity, security or undertaking from the rights, privileges, immunities, indemnities and benefits of Issuer or the Trustee under Article 7; provided that any references in such Article 7 Holders to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”sufficient.
(f) The Collateral Agent shall not be entitled responsible in any manner to rely uponany of the Trustee or any Holder for the validity, and shall not incur effectiveness, genuineness, enforceability or sufficiency of this Indenture or the Security Documents or for any liability for relying uponfailure of the Issuer, any notice, request, certificate, consent, statement, instrument, document Guarantor or any other writing (including any electronic message, Internet party to this Indenture or intranet website posting the Security Documents to perform its obligations hereunder or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof)thereunder. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants and other experts selected by it, and shall not be liable for under any action taken obligation to the Trustee or not taken by it in accordance with any Holder to ascertain or to inquire as to the advice observance or performance of any such counselof the agreements contained in, accountants or expertsconditions of, this Indenture or the Security Documents or to inspect the properties, books or records of the Issuer or the Guarantors.
(g) At all times when The parties hereto and the Trustee is not itself Holders hereby agree and acknowledge that the Collateral AgentAgent 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 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 or the Security Documents or any actions taken pursuant hereto or thereto. Further, the Company will deliver 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 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.
(h) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by two Officers pursuant to this Section 11.10(h) (a “Security Document Order”), the Collateral Agent is hereby authorized to execute and enter into, and shall execute and enter into, without the further consent of any Holder or the Trustee, which any Security Document to be executed after the Issue Date. Such Security Document Order shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents (i) state that it is being delivered to the Collateral Agent pursuant to, and is a Security Document Order referred to in, this Section 11.10(h) 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.
(i) 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).
(j) 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 in its roles under any Security Document, whether or not expressly stated therein.
Appears in 1 contract
Sources: Indenture (Vivus Inc)
Collateral Agent. (a) The By accepting a Note, each holder will be deemed to have irrevocably appointed the Collateral Agent agrees that it will hold to act as its agent under the security interests in Security Documents and the Intercreditor Agreements and to have irrevocably authorized and directed the Collateral created Agent to (i) perform the duties and exercise the rights, powers and discretions that are specifically given to it under the Collateral Documents Security Documents, the Intercreditor Agreements or other documents to which it is a party as contemplated by this Indentureparty, together with any other incidental rights, powers and discretions, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting (ii) execute each document expressed to be executed by the Collateral Agent’s rights, including under this Section 17.02, to act in preservation Agent on its behalf. Each of the security interest in holders hereby exempts the Collateral. Collateral Agent from any restrictions on representing several persons and self-dealing under any applicable law to the extent legally possible for such holder.
(b) The Collateral Agent is authorized and empowered to appoint one or more subagents or co-collateral agents as it deems necessary or appropriate, including without limitation the Term Loan Collateral Agent.
(c) The Collateral Agent shall have all the rights and protection provided in the Security Documents as well as the rights and protections afforded to it hereunder; provided, however, that no collateral agent hereunder the Issuer shall be personally liable not reimburse any expense or indemnify against any loss, liability or expense incurred by reason the Collateral Agent through the Collateral Agent’s own willful misconduct or gross negligence, as determined by a final order of any act or omission a court of any other collateral agent hereundercompetent jurisdiction.
(bd) Neither None of the Trustee nor Trustee, the Collateral Agent nor 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, effectiveness or sufficiency of the Collateral Security Documents, for the creation, perfection, continuation of perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges Lien securing the Notes or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect except to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have extent any duties or obligations except those expressly set forth in the Note Documents to which it possessory collateral is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in the other Note Documents with reference delivered to the Collateral Agent is not intended for perfection purposes.
(e) Subject to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law the Security Documents and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powersIntercreditor Agreements, except discretionary rights and powers that are expressly contemplated as directed by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (Trustee as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, holders acknowledge that the Collateral Agent will not be obligated:
(i) A. to act upon directions purported to be delivered to it by any other Person;
(ii) B. to foreclose upon or otherwise enforce any Lien created under securing the Collateral DocumentsNotes; or
(iii) except as expressly provided in Section 17.03, C. to take any other action whatsoever with regard to any or all of Liens securing the LiensNotes, Collateral the Security Documents or the Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(ef) In acting as Collateral Agent hereunder and under the Collateral DocumentsAgent, co-collateral agent or sub-collateral agent, the Collateral Agent shall be entitled to conclusively Agent, each co-collateral agent and each sub-collateral agent may rely upon and enforce each and all of the rights, privilegespowers, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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 expertsVII hereof.
(g) At all times when Neither the Trustee is not itself nor the Collateral Agent shall have any duty to file any financing statements, continuation statements or amendments thereto or any other agreement or instrument to record or perfect or maintain the perfection of the Collateral Agent, ’s security interest in the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral DocumentsCollateral.
Appears in 1 contract
Sources: Indenture (Advantage Solutions Inc.)
Collateral Agent. (a) The Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent agrees that it will hold as its agent under this Indenture and the security interests in Notes Security Documents and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral created Agent to take such action on its behalf under the provisions of this Indenture and the Notes Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Documents to which it is a party as contemplated Agent by the terms of this Indenture, and the Notes Security Documents, together with such powers as are reasonably incidental thereto. Notwithstanding any and all proceeds thereof, for provision to the benefit ofcontrary elsewhere in this Indenture or the Notes Security Documents, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations responsibilities except those expressly set forth in the Note Documents to which it is a partyherein or therein, or any fiduciary relationship with any Holder, and its duties hereunder no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be administrative in nature. Without limiting read into this Indenture or the generality of the foregoingNotes Security Documents, (1) or otherwise exist against the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless Agent. For the avoidance of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a partydoubt, the Collateral Agent shall not have no duty or obligation to any duty Holder or any other Person to discloseassure that the Collateral exists or is owned by the Company or any Guarantor or is cared for, protected or insured, or has been encumbered, or that the liens granted on the Collateral pursuant to the Notes Security Documents have been properly, sufficiently or lawfully created, perfected, protected or enforced, or are entitled to any particular priority. The Collateral Agent may consult with the counsel of its selection and the advice or opinion of such counsel as to matters of law shall constitute full and complete authorization for, and shall not be liable for the failure to discloseprotection from liability in respect of, any information relating to any Note Party action taken, omitted or any suffered by it hereunder or under the Notes Security Documents in good faith and in accordance with the advice or opinion of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacitysuch counsel. The Collateral Agent shall not be liable for any action taken or not taken by it under this Indenture or the Notes Security Documents (i) with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of a majority of the Holders as shall be necessary, aggregate principal amount of the outstanding Notes or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents(ii) or in the absence of its own gross negligence or negligence, willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateralbad faith.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.
Appears in 1 contract
Collateral Agent. (a) Limitation of the Collateral Agent's Liability; ----------------------------------------------- Responsibilities of the Collateral Agent. The Collateral Agent agrees that it will hold the security interests in Agent's duties and ---------------------------------------- responsibilities are fully set forth herein and the Collateral created Agent shall have no duties or responsibilities other than those set forth herein. The Collateral Agent's responsibility and liability under this Agreement shall be limited as follows:
(i) the Collateral Documents Agent does not represent, warrant or guaranty to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit ofHolders, the Secured PartiesAdministrative Agent or the RHINOS Holders from time to time the performance of the Company; (ii) the Collateral Agent shall have no responsibility to the Company, the Holders, the Administrative Agent or the RHINOS Holders as a consequence of performance or non-performance by the Collateral Agent hereunder, except for any gross negligence or willful misconduct of the Collateral Agent; (iii) the Company shall remain solely responsible for all aspects of the Company's business and conduct; (iv) the Collateral Agent does not guarantee any return and is not liable for any losses as long as the investment directions are followed and (v) the Collateral Agent is not obligated to supervise or inspect the Company or inform any third party of any matter referred to above. No implied covenants or obligations shall be inferred from this Agreement against the Collateral Agent, nor shall the Collateral Agent be bound by the provisions of any agreement beyond the specific terms hereof. Specifically and without limiting the foregoing, the Collateral Agent shall in no event have any liability in connection with its investment, reinvestment or liquidation, in good faith and in accordance with the terms hereof, of any funds or U.S. Government Obligations held by it hereunder, including without limitation any liability for any delay not resulting from gross negligence or willful misconduct of the Collateral Agent in such investment, reinvestment or liquidation, or for any loss of principal or income incident to any such delay. The Collateral Agent’s rights, including under the Holders, the Administrative Agent and the RHINOS Holders shall be entitled to rely upon any judicial order or judgment, upon any written opinion of counsel or upon any certification, instruction, notice, or other writing delivered to it by the Company or the Holders in compliance with the provisions of this Section 17.02, Agreement without being required to act in preservation determine the authenticity or the correctness of any fact stated therein or the security interest in the Collateralpropriety or validity of service thereof. The Collateral Agent is may act in reliance upon any instrument comporting with the provisions of this Agreement or signature believed by it to be genuine and may assume that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. At any time the Collateral Agent may request in writing an instruction in writing from the Company, and empowered may at its own option include in such request the course of action it proposes to appoint one or more co-collateral agents as take and the date on which it deems necessary or appropriateproposes to act, regarding any matter arising in connection with its duties and obligations hereunder; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral Agent nor any shall state in such -------- ------- request that it believes in good faith that such proposed course of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection action is consistent with another identified provision of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing sothis Agreement. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties be liable to the Company for acting without the Company's consent in accordance with such a proposal on or obligations except those expressly set forth in after the Note Documents to which it date specified therein if (i) the specified date is a partyat least two Business Days after the Company receives the Collateral Agent's request for instructions and its proposed course of action, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1ii) the Collateral Agent shall not be subject prior to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereofso acting, the Collateral Agent is required to exercise as directed in writing by has not received the Administrative Determination Holder(s), prior to written instructions requested from the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacityCompany. The Collateral Agent may act pursuant to the written advice of counsel chosen by it with respect to any matter relating to this Agreement and (subject to Section 4(a)(ii)) shall not be liable for any action taken or not taken by it omitted in accordance with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth hereinadvice. The Collateral Agent shall not be deemed not called upon to have knowledge advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder. In the event of any Default or Event ambiguity in the provisions of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever Agreement with regard respect to any funds or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documentsproperty deposited hereunder, the Collateral Agent shall be entitled to conclusively rely upon and enforce each refuse to comply with any and all of claims, demands or instructions with respect to such funds or property, and the rightsCollateral Agent shall not be or become liable for its failure or refusal to comply with conflicting claims, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) demands or instructions. The Collateral Agent shall be entitled to rely upon, and refuse to act until either any conflicting or adverse claims or demands shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signedfinally determined by a court of competent jurisdiction or settled by agreement between the conflicting claimants as evidenced in a writing, sent satisfactory to the Collateral Agent, or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also shall have received security or an indemnity satisfactory to the Collateral Agent sufficient to save the Collateral Agent harmless from and against any and all loss, liability or expense which the Collateral Agent may rely upon any statement made incur by reason of its acting or failure to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereonact. The Collateral Agent may consult with legal counsel, independent accountants and in addition elect in its sole option to commence an interpleader action or seek other experts selected by it, and shall not be liable for any action taken judicial relief or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to orders as the Collateral Agent and copies may deem necessary. No provision of all documents delivered to this Agreement shall require the Collateral Agent pursuant to expend or risk its own funds or otherwise incur any financial liability in the Collateral Documentsperformance of any of its duties hereunder.
Appears in 1 contract
Collateral Agent. (a) The Collateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, has been appointed to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken hereunder by it with the consent or at the request Hold- ers of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth hereinNotes. The Collateral Agent shall be deemed not obligated, and shall have the right hereunder, to have knowledge make de- mands, 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 any Default or Event Collateral), solely in accordance with this Agreement and the Note Purchase Agreement. In furtherance of Default unless and until written notice thereof (stating the foregoing provisions of this Section, each Secured Party, by its acceptance of the benefits hereof, agrees that it is a “notice shall have no right individually to realize upon any of default” the Collateral hereunder, it being understood and describing agreed by such Default 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 provisions of the Note Purchase Agreement relating to the Collateral Agent, including, without limitation, the provisions relating to resignation or Event of Default) is given to a Responsible Officer removal of the Collateral Agent by and the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trusteeprotections, or the Administrative Determination Holder(s)rights, indemnities, powers and prior to the Braidwell Disposition Date, the Braidwell Holders, duties and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, immunities of the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it are incorporated herein by this reference and shall survive any Person;
(ii) to foreclose upon termination of the Note Purchase Agreement or otherwise enforce any Lien created under removal or resignation of the Collateral Documents; or
Agent. In connection with exercising any right or discretionary duty hereunder (iii) except as expressly provided in Section 17.03including, to take without limitation, the exercise of any other action whatsoever with regard to any or all rights following the occurrence of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result an Event of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral DocumentsDefault), the Collateral Agent shall be entitled to conclusively request and rely upon and enforce each and all the direction of Holders of a majority in aggregate outstanding amount of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 Notes to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to direct the Collateral Agent pursuant to the Note Purchase Agreement. The Collateral DocumentsAgent shall not have any liability for taking any action at such direction or for its failure to take any action pending the receipt of such direction. The Collateral Agent shall not be responsible for and makes no representation as to the validity or adequacy of this Agreement, and it shall not be responsible for any statement or recital in this Agreement. Neither the Collateral Agent nor any of its affiliates, directors, officers, agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (i) any statement, warranty or representation made in connection with this Agreement; (ii) the performance or observance of any of the covenants or agreements of the Grantor herein; or (iii) the receipt of items required to be delivered to the Collateral Agent.
Appears in 1 contract
Sources: Second Lien Notes Pledge and Security Agreement (Ocwen Financial Corp)
Collateral Agent. (a) The Each Holder hereby irrevocably designates and appoints the Collateral Agent agrees that it will hold as the security interests collateral agent under this Agreement and the Notes Documents, and each such Holder irrevocably authorizes the Collateral Agent, in such capacity, to take such action on its behalf under the provisions of this Agreement and the Notes Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement and the Notes Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein or in the Collateral created under Notes Documents, or any fiduciary relationship with any Holder, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or the Notes Documents or otherwise exist against the Collateral Documents Agent. In furtherance of the foregoing, each Holder hereby appoints and authorizes the Collateral Agent to which it is a party act as contemplated by this Indenturethe agent of such Holder for purposes of acquiring, holding and enforcing any and all proceeds thereofLiens on Collateral granted by the Company or any Subsidiary to secure any of the obligations owing under this Agreement or the Notes Documents, for the benefit oftogether with such powers and discretion as are reasonably incidental thereto. In this connection, the Secured Parties, without limiting Collateral Agent shall be entitled to the Collateral Agent’s rights, including under benefits of this Section 17.02, to act in preservation of the security interest in the Collateral6. The Collateral Agent is authorized may execute any of its duties under this Agreement and empowered the Notes Documents (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof)) by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. The Collateral Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care. The Collateral Agent may also from time to time, when it deems it to be necessary or desirable, appoint one or more trustees, co-trustees, collateral agents as it deems necessary co-agents, collateral subagents or appropriateattorneys-in-fact (each, a “Subagent”) with respect to all or any part of the Collateral; provided, however, that no collateral agent hereunder such Subagent shall be personally liable authorized to take any action with respect to any Collateral unless and except to the extent expressly authorized in writing by reason of the Collateral Agent. Should any act instrument in writing from the Company or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor Subsidiary be required by any Subagent so appointed by the Collateral Agent nor to more fully or certainly vest in and confirm to such Subagent such rights, powers, privileges and duties, the Company shall, or shall cause such Subsidiary to, execute, acknowledge and deliver any and all such instruments promptly upon request by the Collateral Agent. If any Subagent, or successor thereto, shall become incapable of acting, resign or be removed, all rights, powers, privileges and duties of such Subagent, to the extent permitted by law, shall automatically vest in and be exercised by the Collateral Agent until the appointment of a new Subagent. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent, attorney-in-fact or Subagent that it selects with reasonable care. The Collateral Agent shall not, and neither shall any of its Affiliates or any of their respective officers, directors, employees, attorneys agents, attorneys-in-fact or agents will affiliates be responsible or (a) liable for any action lawfully taken or omitted to be taken by it or such person under or in connection with this Agreement or any other Notes Document (except to the existenceextent that any of the foregoing are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from its or such person’s own gross negligence, willful misconduct or bad faith) or (b) responsible in any manner to any Holder for any recitals, statements, representations or warranties made by the Company or any Subsidiary or any officer thereof contained in this Agreement or any other Notes 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 or any other Notes Document or for the value, validity, effectiveness, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, enforceability or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency this Agreement or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, other Notes Document or for any failure of the Company or any Subsidiary a party thereto to demand, collect, foreclose perform its obligations hereunder or realize upon thereunder. The Collateral Agent shall not be under any obligation to any Holder to ascertain or otherwise enforce to inquire as to the observance or performance of any of the Liens agreements contained in, or Collateral Documents conditions of, this Agreement or any delay in doing so. Neither other Notes Document, or to inspect the Trustee nor the Collateral Agent nor any of their respective officersproperties, directors, employees, attorneys books or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection records of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages Company or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) Subsidiary. The Collateral Agent shall not have any duties or obligations except those expressly set forth herein and in the Note Documents to which it is a party, and its duties hereunder shall be administrative in natureother Notes Documents. Without limiting the generality of the foregoing, (1a) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing andcontinuing, without limiting and (b) the generality of the foregoingCollateral Agent shall not, the use of the term “agent” except as expressly set forth herein and in 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 and insteadNotes Documents, 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party the Company or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) Default is given to a Responsible Officer of the Collateral Agent by the Company or any a Holder. The Collateral Agent will shall not be subject responsible for or have any duty to such directions as may be given to it by ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Notes Document, (ii) the Trusteecontents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) 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, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Notes Document or any other agreement, instrument or document, or the Administrative Determination Holder(s)creation, and prior perfection or priority of any Lien purported to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it created by the Trustee Notes Documents, (v) the value or the Administrative Determination Holder(s)sufficiency of any Collateral, and prior or (vi) the satisfaction of any condition set forth in Section 4 or 4A or elsewhere herein, other than to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as confirm receipt of items expressly required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) . 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 (including any electronic message, Internet or intranet website posting or other distribution) or conversation believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof)person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof)person, and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counselcounsel (including counsel to the Company), 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 shall be fully justified in failing or refusing to take any action under this Agreement or any other Notes Document unless it shall first receive such advice or concurrence of the Required Holders as it deems appropriate or it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense that 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 Agreement and the other Notes Documents in accordance with a request of the Required Holders (or, if so specified by this Agreement, all of the Holders), and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and all future Holders. 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 has received written notice from a Holder or the Company referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.
” In the event that the Collateral Agent receives such a notice, the Collateral Agent shall give notice thereof to the Holders. The Collateral Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Holders (gor, if so specified by this Agreement, all of the Holders); provided, that unless and until the Collateral Agent shall have received such directions, the Collateral Agent may (but shall not be obligated to) At all times when take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the Trustee is best interests of the Holders. Each Holder expressly acknowledges that neither the Collateral Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates have made any representations or warranties to it and that no act by the Collateral Agent hereafter taken, including any review of the affairs of the Company or any affiliate of the Company, shall be deemed to constitute any representation or warranty by the Collateral Agent to any Holder. Each Holder represents to the Collateral Agent that it has, independently and without reliance upon the Collateral Agent or any other Holder, and based on such documents and information as it has deemed appropriate, made its own appraisal of, and investigation into the business, operations, property, financial and other condition and creditworthiness of, the Company and its affiliates and made its own decision to purchase the Notes hereunder and enter into this Agreement. Each Holder also represents that it will, independently and without reliance upon the Collateral Agent or any other Holder, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Notes Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Company and its affiliates. Except for notices, reports and other documents expressly required to be furnished to the Holders by the Collateral Agent hereunder, the Collateral Agent shall not have any duty or responsibility to provide any Holder with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of the Company or any affiliate of the Company that may come into the possession of the Collateral Agent or any of its officers, directors, employees, agents, attorneys-in-fact or affiliates. The Holders agree to indemnify the Collateral Agent, in its capacity as such (to the extent not reimbursed by the Company will deliver or any Subsidiary and without limiting the obligation of the Company or any Subsidiary to do so), in the Trusteeamount of its pro rata share of Notes (determined at the time such indemnity is sought), which shall deliver to from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the Holders payment of the Notes) be imposed on, copies of all Collateral Documents delivered to incurred by or asserted against the Collateral Agent and copies in any way relating to or arising out of all this Agreement, any of the other Notes Documents or any documents delivered contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Collateral Agent pursuant under or in connection with any of the foregoing; provided, that no Holder shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the Collateral DocumentsAgent’s gross negligence, willful misconduct or bad faith. The failure of any Holder to reimburse the Collateral Agent promptly upon demand for its ratable share of any amount required to be paid by the Holders as provided herein shall not relieve any other Holder of its obligation hereunder to reimburse the Collateral Agent for its ratable share of such amount, but no Holder shall be responsible for the failure of any other Holder to reimburse the Collateral Agent for such other Holder’ ratable share of such amount. The agreements in this Section shall survive the payment of the Notes and all other amounts payable hereunder. The Collateral Agent and its affiliates may make loans to, accept deposits from, and generally engage in any kind of business with the Company and its Subsidiaries as though the Collateral Agent were not the Collateral Agent. With respect to its Notes, the Collateral Agent shall have the same rights and powers under this Agreement and the other Notes Documents as any other Holder and may exercise the same as though it were not the Collateral Agent, and the term “Holder” shall include the Collateral Agent in its individual capacity.
Appears in 1 contract
Sources: Note and Warrant Purchase Agreement (Ocwen Financial Corp)
Collateral Agent. (a) The By accepting a Note, each holder will be deemed to have irrevocably appointed the Collateral Agent agrees that it will hold to act as its agent under the security interests in Security Documents and the Intercreditor Agreements and to have irrevocably authorized and directed the Collateral created Agent to (i) perform the duties and exercise the rights, powers and discretions that are specifically given to it under the Collateral Documents Security Documents, the Intercreditor Agreements or other documents to which it is a party as contemplated party, together with any other incidental rights, powers and discretions; and (ii) execute each document expressed to be executed by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation Agent on its behalf. Each of the security interest in holders hereby exempts the Collateral. Collateral Agent from any restrictions on representing several persons and self-dealing under any applicable law to the extent legally possible for such holder.
(b) The Collateral Agent is authorized and empowered to appoint one or more subagents or co-collateral agents as it deems necessary or appropriate, including without limitation the Term Loan Collateral Agent.
(c) The Collateral Agent shall have all the rights and protection provided in the Security Documents as well as the rights and protections afforded to it hereunder; provided, however, that no collateral agent hereunder the Issuer shall be personally liable not reimburse any expense or indemnify against any loss, liability or expense incurred by reason the Collateral Agent through the Collateral Agent’s own willful misconduct or gross negligence, as determined by a final order of any act or omission a court of any other collateral agent hereundercompetent jurisdiction.
(bd) Neither None of the Trustee nor Trustee, the Collateral Agent nor 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, effectiveness or sufficiency of the Collateral Security Documents, for the creation, perfection, continuation of perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges Lien securing the Notes or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect except to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have extent any duties or obligations except those expressly set forth in the Note Documents to which it possessory collateral is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in the other Note Documents with reference delivered to the Collateral Agent is not intended for perfection purposes.
(e) Subject to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law the Security Documents and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powersIntercreditor Agreements, except discretionary rights and powers that are expressly contemplated as directed by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (Trustee as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, holders acknowledge that the Collateral Agent will not be obligated:
(i) A. to act upon directions purported to be delivered to it by any other Person;
(ii) B. to foreclose upon or otherwise enforce any Lien created under securing the Collateral DocumentsNotes; or
(iii) except as expressly provided in Section 17.03, C. to take any other action whatsoever with regard to any or all of Liens securing the LiensNotes, Collateral the Security Documents or the Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.
Appears in 1 contract
Sources: Indenture (Advantage Solutions Inc.)
Collateral Agent. (a) The Collateral Agent Each Grantor hereby agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, pay all fees and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting expenses of the Collateral Agent’s rights, as when due, and as set forth on Schedule 1 of the Senior Note, in connection with the performance of its duties under the Intercreditor Agreement or this Security Agreement. Each Grantor agrees to indemnify the Collateral Agent and its directors, employees and agents for, and to hold them harmless against, any loss, liability or expense incurred without gross negligence or willful misconduct on their part arising out of or in connection with the acceptance or administration of the Collateral, including the reasonable costs and expenses of defending themselves against any claim (whether asserted by the Company, any Holder or any other Person) or liability in connection with the exercise or performance of any of their powers or duties hereunder, or in connection with enforcing the provisions of this SECTION 26, except to the extent that any such loss, liability or expense was due to the Collateral Agent's gross negligence or willful misconduct. If and only to the extent that the Grantors shall fail to indemnify the Collateral Agent as provided herein within thirty (30) days of the Collateral Agent's request for such indemnification, then xxxx shall indemnify the Collateral Agent in accordance with this SECTION 26(a) as if xxx were the primary obligor under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunderSECTION 26(a).
(b) Neither The Collateral Agent shall not be responsible in any manner whatsoever for the Trustee nor correctness of any recitals, statements, representations or warranties made, herein or in any of the other Loan Document (except those specifically applicable to the Collateral Agent). The Collateral Agent makes no representations or warranties of any kind or nature with respect to any Grantor, this Security Agreement, the other Loan Documents or the Secured Obligations (except those specifically applicable to the Collateral Agent). Notwithstanding the right to do so, the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will shall not be responsible for insuring the Collateral or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxestaxes, charges or assessments or discharging of Liens upon the Collateral or otherwise as to the maintenance of the CollateralCollateral or for the recording, filing or depositing of any document or any financing statement, or for any defect continuation statement containing a security interest in the Collateral or deficiency as to see the maintenance of such recording, filing or depositing or to any such mattersre-recording, re-filing or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing re-depositing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Officethereof.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) xxxx hereby appoints the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject collateral agent pursuant to the terms hereof, and the Collateral Agent is required to exercise hereby accepts such appointment. Except as directed expressly set forth in writing by the Administrative Determination Holder(s)this Security Agreement, prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe has not otherwise made to xxxx, nor does the Collateral Agent hereby make to xxxx, any representations or warranties, express or implied, nor does the Collateral Agent assume any liability to with respect to: (i) the enforceability, validity, value or collectibility of any of the Secured Obligations or guarantee which may have been delivered to xxx in good faith connection therewith, (ii) the Collateral or the enforceability, validity, value or collectibility of any Security Interest granted therein to be necessaryxxx, under (iii) any insurance in respect of the circumstances Collateral or (iv) the Debtor/Payor's or any Subsidiary of the Debtor/Payor's title to or right to grant a Security Interest on the Collateral.
(d) Except as provided set forth in the Note Documents); provided that this Security Agreement, the Collateral Agent shall not be required to take any other action thatunder the Loan Documents or to execute any additional agreement, including, without limitation, any action to perfect, protect or preserve any Security Interest granted in its opinion this Security Agreement or the opinion to administer any Collateral, unless instructed in writing to do so by xxxx or any of its counsel, may expose the xxx's successors or assigns. If Collateral Agent to liability shall request instructions from xxxx or that is contrary any of xxxx's successors or assigns with respect to any Note Document act or Applicable Lawsaction (including failure to act) in connection with this Security Agreement or any other Loan Document, then Collateral Agent shall be entitled to refrain from such act or taking such action unless and (3) except as expressly set forth until Collateral Agent shall have received instructions in the Note Documents to which it is a party, the writing from xxxx or any of xxxx's successors or assigns and Collateral Agent shall not have incur liability to any duty to disclose, and Person by reason of so refraining.
(e) The Collateral Agent shall not be liable for required to ascertain or inquire as to the failure to disclose, performance by the any information relating to any Note Party or Grantor of any of its Affiliates that is communicated to the covenants or obtained by the Person serving as Collateral Agent or agreements contained in any of its Affiliates in the Loan Documents.
(f) Notwithstanding any capacity. The other provision of this Security Agreement or the Loan Documents, the Collateral Agent shall not be liable for any action taken or not omitted to be taken by it in accordance with this Security Agreement or the consent Loan Documents, including, without limitation, as a result of any foreclosure on any Collateral, whether by public or at the request of the Administrative Determination Holder(s)private sale or otherwise, prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of except for its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth hereinmisconduct. The Collateral Agent In no event shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company be liable for any special, indirect or consequential loss or damage of any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trusteekind whatsoever, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only even if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all has been advised of the Liens, Collateral Documents likelihood of such loss or Collateraldamage.
(dg) The Collateral Agent will be accountable only for amounts that it actually receives as may resign at any time by giving written notice thereof to the Debtor/Payor and xxxx. If xxxx shall not have appointed a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as successor Collateral Agent hereunder and under within sixty (60) days after the Collateral Documentsgiving of such notice of resignation, the resigning Collateral Agent shall be entitled to conclusively rely upon and enforce each and all may petition any court of competent jurisdiction for the rights, privileges, immunities, indemnities and benefits appointment of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “a successor Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants be removed at any time by xxxx (or its permitted successors and other experts selected assigns) 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents notice delivered to the Collateral Agent and copies of all documents delivered Debtor/Payor. Any successor Collateral Agent shall be a bank, trust company, financial services company or other Person with experience in performing the tasks required to be performed hereunder by the Collateral Agent pursuant to the Collateral DocumentsAgent.
Appears in 1 contract
Collateral Agent. (a) The Each Purchaser hereby appoints AIR OP to act on behalf of the Purchasers as collateral agent (in such capacity, together with its successors and assigns, the “Collateral Agent”) under the Pledge Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement and the Pledge Agreement, and AIR OP agrees that it will hold to act as such. In taking any action pursuant to the security interests provisions of the Pledge Agreement, and in exercising any rights or remedies set forth therein, the Collateral Agent shall act at the direction of the Required Holders, Table of Contents and any such actions taken at the direction of the Required Holders shall be binding upon all Purchasers. Notwithstanding any provision to the contrary contained elsewhere in this Agreement and the Pledge Agreement, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Collateral created under Pledge Agreement, nor shall the Collateral Documents Agent have or be deemed to which it is a party as contemplated by this Indenturehave any trust or fiduciary relationship with any Purchaser, and any no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement and all proceeds thereof, for the benefit of, the Secured Parties, without limiting Pledge Agreement or otherwise exist against the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither Subject to the Trustee nor provisions of the Pledge Agreement, each Purchaser agrees that the Collateral Agent nor any shall execute and deliver the Pledge Agreement and all agreements, powers of their respective officersattorney, directorsdocuments and instruments incidental thereto, 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay and act in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings accordance with respect to the U.S. Patent and Trademark Office or U.S. Copyright Officeits terms.
(c) The Collateral Agent shall not have no obligation whatsoever to the Purchasers to assure that the Collateral exists or is owned by the Company 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 duties particular priority, or obligations except those expressly set forth to determine whether all of the Company’s property constituting Collateral 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 Note Documents to which it is a partyrights, authorities, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary powers granted or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in the other Note Documents with reference available to the Collateral Agent is not intended pursuant to connote any fiduciary this Agreement or other implied (or express) obligations arising under agency doctrine of any Applicable Law the Pledge Agreement, it being understood and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers agreed that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage respect of the Holders as shall be necessaryCollateral, or as the Collateral Agent shall believe in good faith to be necessaryany act, under the circumstances as provided in the Note Documents); provided that the Collateral Agent shall not be required to take any action thatomission, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a partyevent related thereto, the Collateral Agent shall not have any no other duty or liability whatsoever to disclose, and shall not be liable for the failure to disclose, any information relating Purchasers as to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateralforegoing.
(d) The Collateral Agent will may resign at any time by notice to each Purchaser and the Company, such resignation to be accountable only for amounts that it actually receives effective upon the acceptance by each Purchaser of a successor agent to its appointment as a result Collateral Agent. If no successor collateral agent is appointed prior to the intended effective date of the enforcement resignation of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under (as stated in the notice of resignation), the Collateral DocumentsAgent may appoint, after consulting with each Purchaser, 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. 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” shall mean such successor collateral agent, and the retiring Collateral Agent’s appointment, powers and duties as the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all terminated. Promptly following the acceptance of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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 appointment of any such counsel, accountants or experts.
(g) At all times when the Trustee is not itself the successor Collateral Agent, the Company will deliver to shall cause assignments of filings existing on the Trustee, which shall deliver to the Holders date of Notes, copies of all Collateral Documents delivered such assignment related to the Collateral to be filed or recorded sufficient to reflect the successor Collateral Agent, as secured party of record in accordance with applicable law related to each portion of the Collateral. After the retiring Collateral Agent’s resignation hereunder, the provisions of this Section 12.2 shall continue to inure to its benefit and the retiring Collateral Agent and copies shall not by reason of all documents delivered 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 pursuant to the Collateral Documentsunder this Agreement.
Appears in 1 contract
Collateral Agent. (a) The Collateral Agent agrees that it will hold Each Holder, by its acceptance of a Note, authorizes the security interests in the Collateral created under the Collateral Documents Trustee to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting appoint the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of . The Trustee hereby appoints the security interest in Collateral Agent and the CollateralCollateral Agent hereby accepts such appointment. The Collateral Agent is shall be authorized and empowered to appoint one or more co-collateral agents as it deems necessary in its sole discretion. In the event the Trustee and the Collateral Agent shall at any time not be the same Person, the Collateral Agent shall take such actions under the Security Documents as are requested by the Trustee and as are not inconsistent with or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason contrary to the provisions of any act Security Document or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor Intercreditor Agreement. Except as otherwise explicitly provided herein or in the Security Documents, neither the Collateral Agent nor any of their its respective officers, directors, employees, attorneys employees or agents will shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose collect or realize upon or otherwise enforce any of the Liens Collateral or Collateral Documents or for any delay in doing so. Neither the Trustee nor the Collateral Agent nor so or shall be under any of their respective officers, directors, employees, attorneys obligation to sell or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing otherwise dispose of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at upon the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon Person or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to the Collateral or any part thereof, except for its own willful misconduct or all of the Liens, Collateral Documents or Collateral.
(d) negligence. The Collateral Agent will shall be accountable only for amounts that it actually receives as a result of the enforcement exercise of such powers, and neither the Liens Collateral Agent nor any of its officers, directors, employees or Collateral Documentsagents shall be responsible for any act or failure to act hereunder, except for its own willful misconduct or negligence.
(eb) In acting as Collateral Agent hereunder Each Holder, by its acceptance of a Note, authorizes and under the Collateral Documents, directs the Collateral Agent shall be entitled to conclusively rely upon (1) enter into the Security Documents and enforce each and all the Intercreditor Agreement, (2) bind the Holders of the rights, privileges, immunities, indemnities and benefits of Notes on the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements terms as set forth in the Note Security Documents for being and the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone Intercreditor Agreement and believed by it to have been made by (3) perform and observe its obligations under the proper Person (whether or not such Person in fact meets Security Documents and the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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 expertsIntercreditor Agreement.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.
Appears in 1 contract
Collateral Agent. (a) The Collateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, Trustee and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation each of the security interest in Holders by acceptance of the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason Securities hereby authorize the appointment of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral Agent nor as the Trustee’s and the Holders’ Collateral Agent under the Security Documents and in its capacity as mortgagee and security trustee pursuant to the Collateral Rig Mortgages, 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 to take such action on their behalf under the provisions of the Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Security Documents, together with such powers as are reasonably incidental thereto. Notwithstanding any of their respective officersprovision to the contrary contained elsewhere in this Indenture and the Security Documents, 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 duties of the Collateral DocumentsAgent shall be ministerial and administrative in nature, for and the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations responsibilities, except those expressly set forth herein and in the Note Security Documents to which it the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or fiduciary relationship with the Trustee, any Holder, the Company, any Collateral Grantor or any Guarantor, and its duties hereunder no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be administrative in natureread into this Indenture and the Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoingforegoing sentence, the use of the term “agent” herein and in the other Note Documents this 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 and insteadapplicable 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights . The Trustee is authorized and powers that are expressly contemplated directed by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, Holders and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders by acquiring the Securities are deemed to have authorized the Trustee, as shall be necessaryapplicable, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose cause the Collateral Agent to liability or that enter into and perform its obligations under the Security Documents. The Collateral Agent is contrary authorized and directed by the Trustee and the Holders and the Holders by acquiring the Securities are deemed to any Note Document or Applicable Lawshave authorized the Collateral Agent, and to (3i) except as expressly set forth in enter into the Note Security Documents to which it is a party, (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, including entering into amendments, supplements and other modifications permitted by the terms of this Indenture or the Security Documents. Each Holder, by its acceptance of a Security, 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 Indenture. Each of the Holders by acquiring the Securities is hereby deemed to have directed the Trustee to appoint the Collateral Agent shall not as its mortgagee and security trustee and, for purposes of Swiss law, as agent, to receive, hold, administer and enforce the Collateral Rig Mortgages covering the Collateral Rigs, as contemplated under this Indenture. Without limiting the generality of the foregoing, in relation to Swiss law-governed Security Documents (the “Swiss Security Documents”), each present and future Holder, by its acceptance of a Security, is deemed to have consented and agreed that:
(a) the Collateral Agent holds: (A) any duty security created or evidenced or expressed to disclosebe created or evidenced under or pursuant to a Swiss Security Document by way of a security assignment (Sicherungsabtretung) or transfer for security purposes (Sicherungsübereignung) or any other non-accessory (nicht akzessorische) security and (B) any proceeds and other benefits of such security, and shall not be liable as fiduciary (treuhänderisch) in its own name but for the failure account of all relevant Holders which have the benefit of such security in accordance with this Indenture and the respective Swiss Security Document; and each present and future Holder hereby agrees that the Collateral Agent enters into any such Swiss Security Document as fiduciary (treuhänderisch) in its own name but for the account of all relevant Holders; and
(b) it authorizes the Collateral Agent: (A) to disclose(a) accept and execute as its direct representative (direkter Stellvertreter) any Swiss law pledge or any other Swiss law accessory (akzessorische) security created or evidenced or expressed to be created or evidenced under or pursuant to a Swiss Security Document for the benefit of such Holder and (b) hold, administer and, if necessary, enforce any information relating such security as direct representative (direkter Stellvertreter) on behalf of each relevant Holder which has the benefit of such security; (B) to agree as its direct representative (direkter Stellvertreter) to amendments and alterations to any Note Party Swiss Security Document which creates or evidences or expressed to create or evidence a pledge or any other Swiss law accessory (akzessorische) security; (C) to effect as its direct representative (direkter Stellvertreter) any release of a security created or evidenced or expressed to be created or evidenced under a Swiss Security Document in accordance with this Indenture and the respective Swiss Security Document; and (D) to exercise as its Affiliates that is communicated direct representative (direkter Stellvertreter) such other rights granted to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacityunder this Indenture and under the relevant Swiss Security Document. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge or notice of the occurrence of any Default or Event of Default Default, unless and until the Collateral Agent shall have received written notice thereof (stating that it is from the Trustee or unless a “written notice of default” any event which is in fact such a Default is received by the Collateral Agent at the address specified in Section 14.01, and describing such notice references the Securities and this Indenture. The Collateral Agent shall take such action with respect to such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions Default as may be given to it requested by the Trustee, Trustee in accordance with Article 6 or the Administrative Determination Holder(s), and prior Holders of a majority in aggregate principal amount of the Securities (subject to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this IndentureSection 12.05). The Collateral Agent will shall have no obligation and makes no representation whatsoever to the Trustee or any of the Holders as to the existence, genuineness, value or protection of the Collateral or the sufficiency of any Security Documents, or that the Collateral is owned by any of the Collateral Grantors 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 of the Collateral Grantor’s property constituting Collateral intended to be subject to such directions the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be given to it by the Trustee be, or the Administrative Determination Holder(s)genuineness, and prior validity, marketability or sufficiency thereof or title thereto, or to the Braidwell Disposition Dateexercise at all or in any particular manner or under any duty of care, the Braidwell Holdersdisclosure or fidelity, and prior or to the Deerfield Disposition Datecontinue exercising, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) The Collateral Agent shall be entitled to rely uponauthorities, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document powers granted or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered available to the Collateral Agent pursuant to this Indenture or any other Security Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral DocumentsAgent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act. For the avoidance of doubt, nothing herein shall require the Collateral Agent 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 perfection of the security interests purported to be created by the Security Documents and such responsibility shall be solely that of the Company. Each of 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 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.
Appears in 1 contract
Sources: Indenture (Transocean Ltd.)
Collateral Agent. (a) The Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent agrees that it will hold the security interests in the Collateral created as its agent under this Indenture and the Collateral Documents to which it is a party as contemplated and the Trustee and each of the Holders by this Indenture, and any and all proceeds thereof, for acceptance of the benefit of, the Secured Parties, without limiting Notes hereby irrevocably authorizes the Collateral Agent’s rightsAgent to take such action on its behalf under the provisions of this Indenture and the Collateral Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, including under this Section 17.02, to act in preservation of the security interest in the Collateraltogether with such powers as are reasonably incidental thereto. The Collateral Agent is authorized and empowered agrees to appoint one or more co-collateral agents act as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason such on the express conditions contained in this Section 11.10. The provisions of any act or omission this Section 11.10 are solely for the benefit of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral Agent and none of the Trustee, any of the Holders nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection Grantors shall have any rights as a third party beneficiary of any Collateral, for of the legality, enforceability, effectiveness, or sufficiency of provisions contained herein other than as expressly provided in this Section 11.10. Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations responsibilities, except those expressly set forth in herein, nor shall the Note Documents Collateral Agent have or be deemed to which it is a partyhave any fiduciary relationship with the Trustee, any Holder, the Company or any Guarantor, and its duties hereunder no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be administrative in natureread into this Indenture and the Collateral Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoingforegoing sentence, the use of the term “agent” herein and in the other Note Documents this 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 and insteadapplicable 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 Indenture, (2) the Collateral Agent shall not have any duty and may use its sole discretion with respect to take exercising or refraining from exercising any discretionary action rights or exercise taking or refraining from taking any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, actions which the Collateral Agent is required expressly entitled to take or assert under this Indenture and the Collateral Documents, including the exercise as directed in writing of remedies pursuant to Article VI, and any action so taken or not taken shall be deemed consented to by the Administrative Determination Holder(s)Trustee and the Holders.
(b) The Collateral Agent may execute any of its duties under this Indenture or the Collateral Documents by or through agents, prior to the Braidwell Disposition Dateemployees, the Braidwell Holders, attorneys-in-fact or through its Affiliates and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, entitled to an Officers’ Certificate or as the Collateral Agent shall believe in good faith an Opinion of Counsel or both concerning all matters pertaining to be necessary, under the circumstances as provided in the Note Documents); provided that the such duties. The 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable responsible for the failure to disclosenegligence or misconduct of any agent, any information relating to any Note Party employee, attorney-in-fact or any Affiliate that it selects as long as such selection was made without negligence or willful misconduct.
(c) None of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not (i) be liable for any action taken or not omitted to be taken by it any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own negligence or willful misconduct) or under or in connection with the consent Collateral Documents or at the request transactions contemplated thereby (except for its own negligence or willful misconduct), or (ii) be responsible in any manner to any of the Administrative Determination Holder(s)Trustee or any Holder for any recital, prior to statement, representation, warranty, covenant or agreement made by the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (Company or such other number or percentage of the Holders as shall be necessaryGuarantor, or as any officer thereof, contained in this Indenture, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in connection with, this Indenture or the absence Collateral Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture or the Collateral Documents, or for any failure of the Company any Guarantor or any other party to this Indenture or the Collateral Documents to perform its own gross negligence obligations hereunder or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth hereinthereunder. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer None of the Collateral Agent by the Company or any Holder. The Collateral Agent will of its Affiliates shall be subject under any obligation to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior any Holder to ascertain or to inquire as to the Braidwell Disposition Dateobservance or performance of any of the agreements contained in, the Braidwell Holdersor conditions of, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, or the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateralto inspect the properties, books, or records of the Company, any Guarantor or their respective Affiliates.
(d) The Collateral Agent will shall be accountable only for amounts that entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex, or other document believed by it actually receives as a result 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), 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 Indenture or the Collateral Documents unless it shall first receive such advice or concurrence of the enforcement 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 Indenture or the Collateral Documents in accordance with a request or consent of the Liens Trustee and such request and any action taken or Collateral Documentsfailure to act pursuant thereto shall be binding upon all of the Holders.
(e) In acting as The Collateral Agent hereunder and under shall not be deemed to 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, Holders of Notes, the Company or a Guarantor referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” Subject to the terms of the Intercreditor Agreement, the Collateral Agent shall take such action with respect to such Default or Event of Default as may be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of requested by the Trustee under in accordance with Article 7VI (subject to this Section 11. 10); provided provided, however, that unless and until the Collateral Agent has received any references in such Article 7 request, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to “Trustee” such Default or Event of Default as it shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”deem advisable.
(f) The Collateral Agent shall be entitled to rely uponand its respective Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and shall not incur generally engage in any liability for relying uponkind of banking, trust, financial advisory, underwriting, or other business with the Company, any noticeGuarantor or their respective Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Trustee. The Trustee and the Holders acknowledge that, requestpursuant to such activities, certificate, consent, statement, instrument, document the Collateral Agent or other writing its respective Affiliates may receive information regarding the Company or any Guarantor or any of their Affiliates (including information that may be subject to confidentiality obligations in favor of the Company or any electronic message, Internet Guarantor or intranet website posting or other distributionany of their Affiliates) believed by it to be genuine and to have been signed, sent or otherwise authenticated by acknowledge that the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants and other experts selected by it, and shall not be liable for under any action taken obligation to provide such information to the Trustee or not taken by it in accordance with the advice Holders. Nothing herein shall impose or imply any obligation on the part of any such counsel, accountants or expertsthe Collateral Agent to advance funds.
(g) At all times when The Collateral Agent may resign at any time upon thirty (30) days prior written notice to the Trustee is not itself and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral AgentAgent resigns under this Indenture, the Company will deliver to the Trustee, subject to the consent of the Company (which shall deliver not be unreasonably withheld and which shall not be required during a continuing Default or Event of Default), shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the Holders intended effective date of Notes, copies the resignation of all Collateral Documents delivered to the Collateral Agent and copies (as stated in the notice of all documents delivered to resignation), the Collateral Agent pursuant may appoint, after consulting with the Trustee, subject to the Collateral Documents.consent of the Company (which shall not be unreasonably withheld and which shall not be
Appears in 1 contract
Sources: Indenture (APW Supermarkets, Inc.)
Collateral Agent. (a) The Collateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in natureLoan Documents. Without limiting the generality of the foregoing, (1a) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and instead, such term is used merely as a matter of market customcontinuing, and is intended to create or reflect only an administrative relationship between independent contracting parties, (2b) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, hereby that the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacityLead Lender. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) Lead Lender or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth hereinmisconduct. The Collateral Agent shall not be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s)Grantor, and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will shall not be obligated:
responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made by Grantor in this Agreement or in the Purchase Agreement or the Notes, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in this Agreement or in the Purchase Agreement or the Notes, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, the Purchase Agreement, the Notes or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in this Agreement or in the Purchase Agreement or the Notes, other than to act upon directions purported confirm receipt of items expressly required to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateralsuch Agent.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(fb) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, signed or sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof)person. The Collateral Agent may also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof)person, and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counselcounsel (who may be counsel for the Borrowers), 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.
Appears in 1 contract
Sources: Note and Warrant Purchase Agreement (Universal Security Instruments Inc)
Collateral Agent. (a) The Each Investor hereby irrevocably appoints the Collateral Agent agrees that it will hold the security interests in as its agent and authorizes the Collateral created under Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Documents to which it is a party Agent by the terms hereof, together with such actions and powers as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateralare reasonably incidental thereto. The Collateral Agent is authorized shall have the same rights and empowered to appoint one or more co-collateral agents powers in its capacity as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of an Investor as any other collateral agent hereunder.
(b) Neither Investor and may exercise the Trustee nor same as though it were not the Collateral Agent, and the Collateral Agent nor and its Affiliates may accept deposits from, lend money to and generally engage in any kind of their respective officers, directors, employees, attorneys or agents will be responsible or liable for business with the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents Company or any delay in doing so. Neither the Trustee nor Subsidiary or other Affiliate thereof as if it were not the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) hereunder. The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in natureherein. Without limiting the generality of the foregoing, (1i) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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 partiescontinuing, (2ii) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Lawsthis Agreement, and (3iii) except as expressly set forth in the Note Documents to which it is a partyherein, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party the Company or any of its Affiliates the Subsidiaries that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth hereinmisconduct. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or an Investor (and, promptly after its receipt of any Holder. The Collateral Agent will be subject to such directions as may be given to notice, it by shall give each Investor and the Trustee, or the Administrative Determination Holder(sCompany notice thereof), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will shall not be obligated:
responsible for or have any duty to ascertain or inquire into (ia) 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 act upon directions purported confirm receipt of items expressly required to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) . 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 (including any electronic message, Internet or intranet website posting or other distribution) reasonably believed by it to be genuine and to have been signed, signed or sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof)Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and reasonably believed by it to have been be made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof)Person, and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counselcounsel (who may be counsel for the Grantor), 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.
(g) At . The Collateral Agent may perform any and all times when the Trustee is not itself 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 will deliver 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 Trustee, which shall deliver to the Holders affiliates of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies any such sub agent, and shall apply to their respective activities acting for the Collateral Agent. Subject to the appointment and acceptance of all documents delivered to a successor Collateral Agent as provided in this paragraph, the Collateral Agent pursuant 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 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 Secured Notes, appoint a successor Collateral Agent which shall be a bank with an office in Los Angeles, California, 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 while it was acting as Collateral Agent. Each Investor acknowledges that it has, independently and without reliance upon the Collateral Agent or any other Investors and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into the Secured Transaction Documents. Each Investor also acknowledges that it will, independently and without reliance upon the Collateral Agent or any other Investors and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon any Secured Transaction Document, any related agreement or any document furnished thereunder.
Appears in 1 contract
Sources: Security Agreement (Loton, Corp)
Collateral Agent. (a) The U.S. Bank National Association shall initially act as Collateral Agent agrees that it will hold the security interests and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Collateral created under Security Documents or the Collateral Documents to which it is a party as contemplated by this IndentureIntercreditor Agreements, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor neither the Collateral Agent nor any of their respective its officers, directors, employees, attorneys employees or agents will shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose collect or realize upon or otherwise enforce any of the Liens Notes Collateral or Collateral Documents or for any delay in doing soso or shall be under any obligation to Dispose of any Notes Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Notes Collateral or any part thereof. Neither Notwithstanding any provision to the Trustee nor contrary contained elsewhere in this Indenture, the Intercreditor Agreements or the Security Documents, the duties of the Collateral Agent nor any of their respective officersshall be ministerial and administrative in nature, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain and the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations responsibilities, except those expressly set forth in this Indenture, in the Note Intercreditor Agreements and in the Security Documents to which it 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 Trustee, any Holder, the Issuer or any Guarantor, and its duties hereunder no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be administrative in natureread into this Indenture, the Intercreditor Agreements or the Security Documents or shall otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoingforegoing sentence, the use of the term “agent” herein or “Agent” in this Indenture, the Intercreditor Agreements and in the other Note 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 and insteadapplicable 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement 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 or gross negligence (as determined by a final, non-appealable order of a court of competent jurisdiction).
(b) The Collateral Agent is authorized and directed to (i) enter into the Security Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the 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 Liens 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 DocumentsAgent in connection with any action required or permitted by this Indenture, the Security Documents or the Intercreditor Agreements.
(e) In acting as The Collateral Agent hereunder and under 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, a Holder 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 or the Holders of a majority in aggregate principal amount of the Securities subject to this Article 11.
(f) No provision of this Indenture or any Security Document shall require the Collateral Agent (or the Trustee) 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 Holders (or the 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 11.10(f) if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient.
(g) The Collateral Agent shall not be responsible in any manner to any of the Trustee or any Holder for the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents or the Intercreditor Agreements or for any failure of the Issuer, 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 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 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 shall be entitled may hold or obtain indicia of ownership primarily to conclusively rely upon and enforce each and all protect the security interest of the rights, privileges, immunities, indemnities Collateral Agent in the Notes Collateral and benefits of the Trustee under Article 7; provided that any references such actions taken by the Collateral Agent shall not be construed as or otherwise constitute any participation in the management of such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”Notes Collateral.
(fi) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by two Officers pursuant to this Section 11.10(i) (a “Security Document Order”), the Collateral Agent is hereby authorized to execute 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 11.10(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) The Collateral Agent’s resignation or removal shall be governed by provisions equivalent to Section 7.07(b), Section 7.07(c), Section 7.07(d), Section 7.07(e) and Section 7.07(g).
(k) The Collateral Agent shall be entitled to rely uponall of the protections, immunities, indemnities, rights and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by privileges of the proper Person (whether or not such Person in fact meets the requirements Trustee set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof)this Indenture, and may act upon any all such statement prior to receipt of written confirmation thereof protections, immunities, indemnities, rights and privileges shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered apply to the Collateral Agent and copies of all documents delivered to in its roles under any Security Document or the Collateral Agent pursuant to the Collateral DocumentsIntercreditor Agreements, whether or not expressly stated therein.
Appears in 1 contract
Collateral Agent. (a) The Each Holder hereby designates and appoints SFT (the "Collateral Agent agrees that it will hold Agent") as the security interests in the Collateral created collateral agent for such holder under the Collateral Documents to which it is a party as contemplated Security Agreement dated of even date herewith made by this IndentureSpatialight and by Spatialight of California, Inc., and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting authorizes the Collateral Agent’s rights, including under this Section 17.02in such capacity, to act in preservation be the secured party under said Security Agreement and to take such action on behalf of the security interest in the Collateral. The Collateral Agent is authorized Holders and empowered to appoint one or more co-collateral agents exercise such powers and perform such duties as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor are expressly given to the Collateral Agent nor any by the terms of their respective officersthis Agreement and such Security Agreement, directorstogether with such other powers as are reasonably incidental thereto, employeesincluding, attorneys or agents will be responsible or liable for without limitation, the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as authority to the maintenance of the Collateral, or for any defect or deficiency as to any sign such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any and make such filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The as are necessary to perfect and protect the security interests and liens of the Holders under the Security Agreement. Notwithstanding any provision to the contrary, elsewhere in this Agreement, the Collateral Agent shall not have any duties or obligations responsibilities except those expressly set forth in the Note Documents to which it is a partyherein or any fiduciary relationship with any Holder, and its duties hereunder no implied covenants, functions, responsibilities, duties, obligations, or liabilities shall be administrative read into this Agreement or the Security Agreement or any document executed in nature. Without limiting connection herewith or shall otherwise exist against the generality of the foregoing, Collateral Agent.
(1b) Neither the Collateral Agent nor any company with which he is affiliated, nor any of the directors, officers, agents or employees of such company shall not be subject liable for any action taken or omitted to any fiduciary be taken by him or other implied duties, regardless them under or in connection with this Agreement or the Security Agreement in the absence of whether a Default his or Event their own gross negligence or willful misconduct. Without limitation of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use Collateral Agent (1) may treat the payee of any Note as the holder thereof until the Collateral Agent receives written notice of the term “agent” herein assignment or transfer thereof signed by such payee and in the other Note Documents with reference form satisfactory 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 and 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, Agent; (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counselcounsel (including counsel for the Spatialight), independent public accountants and other experts selected by it, him and shall not be liable for any action taken or not omitted to be taken in good faith by it him in accordance with the advice of any such counsel, accountants accountants, or experts; (3) makes no warranty or representations to any Holder and shall not be responsible to any Holder for any statements, warranties, or representations made in or in connection with this Agreement other than those statements, warranties or representations made by himself as the holder of a Note; (4) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants, or conditions of the Security Agreement on the part of Spatialight, or to inspect the property (including the books and records) of Spatialight; (5) shall not be responsible to any Holder for the due execution, legality, validity, enforceability, genuineness, perfection, sufficiency, or value of the Security Agreement or any other instrument or document furnished pursuant thereto; and (6) shall incur no liability under or in respect of this Agreement or the Security Agreement by acting upon any notice, consent, certificate, or other instrument or writing (which may be sent by telegram, telex, or facsimile transmission) believed by him to be genuine and signed or sent by the proper party or parties.
(gc) At The Holders agree to indemnify the Collateral Agent (to the extent not reimbursed by Spatialight) ratably according to the respective amounts of the Debt from and against any and all times when liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Trustee is Collateral Agent in any way relating to or arising out of this Agreement or the Security Agreement or any action taken or omitted by the Collateral Agent under this Agreement or the Security Agreement, provided that no Holder shall be liable for any portion of any of the foregoing resulting from the Collateral Agent's gross negligence or willful misconduct. Without limitation of the foregoing, each Holder agrees to reimburse the Collateral Agent (to the extent not itself reimbursed by Spatialight) promptly upon demand for its ratable share of any out-of-pocket expenses (including counsel fees) incurred by the Collateral Agent in connection with the preparation, administration, or enforcement of, or legal advice in respect of rights or responsibilities under, this Agreement or the Security Agreement.
(d) The Collateral Agent may resign at any time by giving at least sixty (60) days' prior written notice thereof to the Holders and may be removed at any time with or without cause by a vote of the Holders holding a majority of the amount of the Notes held by the Holders. Upon any such resignation or removal, the Holders shall have the right to appoint a successor Collateral Agent. If no successor Collateral Agent shall have been so appointed by the Holders, and shall have accepted such appointment, within thirty (30) days after the retiring Collateral Agent's giving of notice of resignation or the Holders' removal of the retiring Collateral Agent, then the retiring Collateral Agent may, on behalf of the Holders, appoint a successor Collateral Agent. Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, such successor Collateral Agent shall thereupon 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 his duties and obligations under this Agreement. After any retiring Collateral Agent's resignation or removal hereunder as Collateral Agent, the Company will deliver provisions of this document shall inure to the Trustee, which shall deliver benefit as to the Holders of Notes, copies of all Collateral Documents delivered any actions taken or omitted to the be taken by it while it was Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documentsunder this Agreement.
Appears in 1 contract
Sources: Note Holders' Representative Agreement (Tripp Steven Francis)
Collateral Agent. (a) 11.1 The Collateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, has been appointed to act in preservation as Collateral Agent hereunder by Lenders and, by their acceptance of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms benefits hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth hereinSecured Parties. The Collateral Agent shall be deemed obligated, and 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 Intercreditor Agreement and the Credit Agreement; provided, the Collateral Agent shall, after payment in full of all Obligations under the Credit Agreement and the other Loan Documents, exercise, or refrain from exercising, any remedies provided for herein in accordance with the instructions of the holders (the “Majority Holders”) of a majority of the aggregate “settlement amount” as defined in the Hedging Agreements (or, with respect to any Hedging 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 Hedging Agreement) under all Hedging Agreements. For purposes of the foregoing sentence, settlement amount under any Hedging Agreement that has not been terminated shall be the settlement amount as of the last Business Day of the month preceding any date of determination and shall be calculated by the appropriate swap counterparties and reported to have knowledge the Collateral Agent upon request; provided any Hedging Agreement with a settlement amount that is a negative number shall be disregarded for purposes of any Default or Event determining the Majority Holders. In furtherance of Default unless and until written notice thereof (stating the foregoing provisions of this Section, each Secured Party, by its acceptance of the benefits hereof, agrees that it is a “notice shall have no right individually to realize upon any of default” the Collateral hereunder, it being understood and describing agreed by such Default 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 provisions of the Credit Agreement relating to the Collateral Agent including, without limitation, the provisions relating to resignation or Event of Default) is given to a Responsible Officer removal of the Collateral Agent by and the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), powers and prior to the Braidwell Disposition Date, the Braidwell Holders, duties and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, immunities of the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it are incorporated herein by this reference and shall survive any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all termination of the Liens, Collateral Documents or CollateralCredit Agreement.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.
Appears in 1 contract
Sources: Security Agreement (Five Below, Inc)
Collateral Agent. (a) The Collateral Agent Each Holder agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated any action taken by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral Agent nor any in accordance with the provisions of their respective officersthis Indenture and the Security Documents, directors, employees, attorneys or agents will be responsible or liable for and the existence, genuineness, value or protection exercise by the Collateral Agent of any Collateralrights 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 Indenture and the Security Documents, for the legality, enforceability, effectiveness, or sufficiency duties of the Collateral DocumentsAgent shall be ministerial and administrative in nature, for and the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations responsibilities, except those expressly set forth herein and in the Note Documents Security Documents, to which it 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 Trustee, any Holder or any grantor, and its duties hereunder no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be administrative in natureread into this Indenture and the Security Documents, or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoingforegoing sentence, the use of the term “agent” herein and in the other Note Documents this 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 and insteadapplicable 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, .
(2b) the The Collateral Agent shall not have may perform any duty of its duties under this Indenture or the Security Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to take any discretionary action or exercise any discretionary powersspecified Person, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holderssuch Person’s Affiliates, and prior to the Deerfield Disposition Daterespective officers, the Deerfield Holders directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documentsa “Related Person”); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure entitled to discloseadvice 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 information relating to any Note Party advice or any opinion given by legal counsel (absent gross negligence or willful misconduct as determined in an non-appealable judgment by a court of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacitycompetent jurisdiction). The Collateral Agent shall not be liable responsible for the negligence or misconduct of any action taken receiver, agent, employee, attorney-in-fact or not taken Related 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 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 with in good faith to be genuine and correct and to have been signed, sent, or made by the consent proper Person or at Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the request of the Administrative Determination Holder(sCompany or any other grantor), prior to the Braidwell Disposition Date, the Braidwell Holders, independent accountants and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as experts and advisors selected by the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own (absent gross negligence or willful misconduct as determined by the final and in an non-appealable judgment of by a court of competent jurisdiction, in connection with its duties expressly set forth herein). The Collateral Agent shall not be deemed not bound to have knowledge of make any Default investigation into the facts or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or Event of Default) is given to a Responsible Officer of other paper or document. Except as otherwise expressly provided herein, the Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture or the Security Documents unless it shall first receive such advice or concurrence of the Trustee or the Required Holders or Lynrock, as applicable, and, if it so requests, it shall first be indemnified to its satisfaction by the Company Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any Holdersuch action. The Collateral Agent will shall in all cases be subject to such directions as may be given to it by the Trusteefully protected in acting, or in refraining from acting, under this Indenture or the Administrative Determination Holder(s)Security Documents in accordance with a request, and prior to direction, instruction or consent of the Braidwell Disposition Date, Trustee or the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield HoldersRequired Holders or Lynrock, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to and such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture request and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) action taken or failure to act pursuant thereto shall be binding upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or CollateralHolders.
(d) The Collateral Agent will shall not be accountable only for amounts that it actually receives as a result deemed to have knowledge or notice of the enforcement occurrence of any Default or Event of Default, unless a Responsible Officer of the Liens Collateral Agent shall have received written notice from the Trustee, a Holder 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 DocumentsAgent 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 Required Holders or Lynrock, as the case may be (subject to this Section 13.07 and the Intercreditor Agreement).
(e) In acting The Collateral Agent may (i) resign at any time by 30 days’ written notice to the Trustee and the Company or (ii) be removed at any time by 30 days’ written notice to the Trustee, the Collateral Agent and the Company from the Required Holders, such resignation or removal to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent hereunder and under Agent. If the Collateral DocumentsAgent resigns or is removed under this Indenture, the Required Holders, in consultation with the Company, shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation or removal of the Collateral Agent (as stated in the notice of resignation or removal), the Trustee, at the direction of the Required Holders, may appoint a successor collateral agent in consultation with the Company. 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 or removal, as applicable) the Collateral Agent shall be entitled to conclusively rely upon and enforce each and 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 of the rights, privileges, immunities, indemnities powers and benefits duties of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to retiring Collateral Agent, and the term “Collateral Agent” shall mean such successor collateral agent, and any references to “negligence” shall be references to “gross negligence”.
(f) The the retiring Collateral Agent’s appointment, powers and duties as the Collateral Agent shall be entitled terminated. After the retiring Collateral Agent’s resignation hereunder, the provisions of this Section 13.07 (and Section 7.06 and 7.13 hereof) shall continue to rely upon, inure to its benefit and the retiring Collateral Agent shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document by reason of such resignation or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it removal be deemed to be genuine and released from liability as to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants and other experts selected by it, and shall not be liable for any action actions taken or not omitted to be taken by it in accordance with the advice of any such counsel, accountants or experts.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to while it was the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documentsunder this Indenture.
Appears in 1 contract
Sources: Indenture (Liveperson Inc)
Collateral Agent. (a) The Bank of New York Mellon shall initially act as Collateral Agent agrees that it will hold and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. In the security interests event the Trustee and the Collateral Agent shall at any time not be the same Person, the Collateral Agent shall take such actions under the Security Documents as are requested or instructed by the Trustee and as are not inconsistent with or contrary to the provisions of this Indenture or any Security Document. Except as otherwise explicitly provided herein or in the Collateral created under the Collateral Documents to which it is a party as contemplated by this IndentureSecurity Documents, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor neither the Collateral Agent nor any of their respective its officers, directors, employees, attorneys employees or agents will shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose collect or realize upon or otherwise enforce any of the Liens Notes Collateral or Collateral Documents or for any delay in doing soso or shall be under any 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 Notes Collateral or any part thereof. Neither Notwithstanding any provision to the Trustee nor contrary contained elsewhere in this Indenture or the Security Documents, the duties of the Collateral Agent nor any of their respective officersshall be ministerial and administrative in nature, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain and the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations responsibilities, except those expressly set forth in this Indenture and in the Note Security Documents to which it 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 Trustee, any Holder or the Company, and its duties hereunder no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be administrative in natureread into this Indenture or the Security Documents or shall otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoingforegoing sentence, the use of the term “agent” herein or “Agent” in this Indenture and in the other Note 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 and insteadapplicable 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement exercise of such powers, and neither the Liens 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, bad faith or gross negligence (as determined by a final, non-appealable order of a court of competent jurisdiction).
(b) The Collateral Agent is authorized and directed to (i) enter into the Security Documents, (ii) bind the Holders on the terms as set forth in the Security Documents and (iii) perform and observe its obligations under the Security Documents.
(ec) In acting as The Collateral Agent hereunder shall act pursuant to the instructions of the Holders and under the Collateral DocumentsTrustee 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 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, pursuant to this Indenture, direct the Collateral Agent in connection with any action required or permitted by this Indenture or the Security Documents.
(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, a Holder 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 or the Holders of a majority in aggregate principal amount of the Notes subject to this Article X.
(e) No provision of this Indenture or any Security Document shall require the Collateral Agent (or the Trustee) 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 Holders (or the 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 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 conclusively rely upon and enforce each and all of cease taking any action described in this Section 10.9(e) if it no longer reasonably deems any indemnity, security or undertaking from the rights, privileges, immunities, indemnities and benefits of Company or the Trustee under Article 7; provided that any references in such Article 7 Holders to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”sufficient.
(f) The Collateral Agent shall not be entitled responsible in any manner to rely uponany of the Trustee or any Holder for the validity, and shall not incur effectiveness, genuineness, enforceability or sufficiency of this Indenture or the Security Documents or for any liability for relying upon, failure of the Company or any notice, request, certificate, consent, statement, instrument, document other party to this Indenture or other writing (including any electronic message, Internet the Security Documents to perform its obligations hereunder or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof)thereunder. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants and other experts selected by it, and shall not be liable for under any action taken obligation to the Trustee or not taken by it in accordance with any Holder to ascertain or to inquire as to the advice observance or performance of any such counselof the agreements contained in, accountants or expertsconditions of, this Indenture or the Security Documents or to inspect the properties, books or records of the Company.
(g) At all times when The parties hereto and the Trustee is not itself Holders hereby agree and acknowledge that the Collateral AgentAgent 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 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 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 Security Documents, the Collateral Agent may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Agent in the Notes 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 Notes Collateral.
(h) Upon the receipt by the Collateral Agent of a written request of the Company will deliver signed by an Officer of the Company pursuant to this Section 10.9(h) (a “Security Document Order”), the Collateral Agent is hereby authorized to execute and enter into, and shall execute and enter into, without the further consent of any Holder or the Trustee, which any Security Document to be executed after the Issue Date. Such Security Document Order shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents (i) state that it is being delivered to the Collateral Agent pursuant to, and is a Security Document Order referred to in, this Section 10.9(h) 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 Company, upon delivery to the Collateral Agent of an Officers’ Certificate and, to the extent required pursuant to Section 11.3, 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 Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents.
(i) The Collateral Agent’s resignation or removal shall be governed by provisions equivalent to Section 7.7.
(j) 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 in its roles under any Security Document, whether or not expressly stated therein.
Appears in 1 contract
Sources: Indenture (Palomar Holdings, Inc.)
Collateral Agent. (a) The Company has appointed U.S. Bank National Association to serve as Collateral Agent agrees that it will hold under the security interests in Intercreditor Agreement and the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereofDocuments, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in Holders of the Collateral. Notes.
(b) The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties (directly or obligations except those expressly set forth in the Note Documents to which it is a partythrough co-trustees, agents or sub-agents) will hold, and its duties hereunder shall will be administrative in nature. Without limiting entitled to enforce, all Liens on the generality of the foregoing, Collateral.
(1d) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, Trustee from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions Except as may be given to it directed by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except , the Intercreditor Agreement or as directed by the Administrative Determination Holder(s), prior to Holders with the Braidwell Disposition Date, the Braidwell requisite consent of such Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligatedobligated to:
80 (i1) to act upon directions purported to be delivered to it by any other Person;
; (ii2) to foreclose upon or otherwise enforce any Lien created under the Collateral DocumentsLien; or
or (iii3) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the LiensCollateral Documents, the Liens created thereby or the Collateral. The Company shall do or cause to be done all such acts and things as may be necessary or proper, or as may be required by the provisions of the Intercreditor Agreement and the Noteholder Documents, to assure and confirm to the Trustee and the Collateral Agent the security interest in the Collateral contemplated hereby, by the Intercreditor Agreement, the Noteholder Documents or Collateralany part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Indenture and of the Guarantees secured thereby, according to the intent and purposes herein and therein expressed.
(de) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of Liens created by the Liens or Collateral Documents.
(ef) In acting as Collateral Agent hereunder and under the Collateral DocumentsAgent, the Collateral Agent shall be entitled to conclusively may rely upon and enforce each and all of the rights, privilegespowers, protections, immunities, indemnities and benefits of the Trustee under Article 7; provided that any 7 mutatis mutandis, and, in connection therewith, references in such Article 7 to “Trustee” the Trustee shall be deemed to include the Collateral Agent and references to “this Indenture shall be deemed to include the Collateral Documents and references to negligence with respect to the Trustee will be deemed to be gross negligence with respect to the Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times Each successor Trustee will become the successor Collateral Agent as and when the successor Trustee is not itself the Collateral Agent, the Company will deliver to becomes the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.
Appears in 1 contract
Sources: Indenture (Vector Group LTD)
Collateral Agent. (aA) The Each of the Holders hereby irrevocably appoints U.S. Bank Trust Company, National Association (or any successor appointed pursuant hereto) to act as the Collateral Agent, and authorizes the Collateral Agent agrees that it will hold to take such actions, including execution, delivery and administration of the security interests in the Collateral created under the Collateral Note Documents to which it is or is intended to be a party as contemplated by this Indentureparty, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting to exercise such powers as are delegated to the Collateral Agent’s rights, including under this Section 17.02, to act in preservation Agent by the terms of the security interest in the CollateralNote Documents, together with such actions and powers as are reasonably incidental thereto. The Collateral Agent is authorized (including in its capacities as Note Agent and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder Note Control Agent under the Intercreditor Agreement) shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither entitled to the same rights, protections, immunities and indemnities afforded to the Trustee nor the Collateral Agent nor any of their respective officershereunder, directorsas if such rights, employeesprotections, 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings immunities and indemnities were set forth herein with respect to the U.S. Patent and Trademark Office or U.S. Copyright OfficeCollateral Agent.
(cB) Any Person serving as Collateral Agent hereunder shall, if applicable, have the same rights and powers in its capacity as a Holder as any other Holder and may exercise the same as though it were not the Collateral Agent, and the term “Holder” and “Holders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Holder, include each Person serving as Collateral Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Note Parties or any subsidiary of a Note Party or other Affiliate thereof as if it were not the Collateral Agent hereunder and without any duty to account therefor to the Holders. The Holders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding any Note Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Note Party or such Affiliate), and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to them.
(C) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 applicable law and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Required Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Lawsapplicable laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Required Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Holder and the Collateral Agent will shall not be subject responsible for or have any duty to such directions as may be given to it by ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Note Document, (ii) the Trusteecontents of any certificate, report or other document delivered hereunder or in connection with any Note Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Note Document or the occurrence of any Default or Event of Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Note Document or any other agreement, instrument or document, (v) the creation, perfection or priority of Liens on the Collateral or the existence, value or sufficiency of the Collateral, (vi) the satisfaction of any condition in any Note Document, or (vii) the Administrative Determination Holder(s)properties, and prior books or records of any Note Party or any Affiliate thereof. Notwithstanding anything herein to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfactioncontrary, the Collateral Agent shall not have any liability to any Secured Party arising from, or be responsible for any loss, cost or expense suffered as a result of, the terms of the Intercreditor Agreement.
(D) Each Holder agrees that it will not take any enforcement action hereunder or under any other Note Document, accelerate the Obligations under any Note Document, or exercise any right that it might otherwise have under applicable law or otherwise to credit bid at foreclosure sales, UCC sales, any sale under the applicable provision of any Bankruptcy Law (including Section 363 of the Bankruptcy Code) or other similar dispositions of Collateral.
(E) Notwithstanding anything to the contrary contained herein or in any of the other Note Documents, the Note Parties, the Collateral Agent, the Trustee and the Holders agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Guarantee, it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Collateral Agent, on behalf of itself, the Trustee and the Holders in accordance with the terms hereof and all powers, rights and remedies under the other Note Documents may be exercised solely by the Collateral Agent, and (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) at the written direction of the Required Holders, the Collateral Agent, as agent for and representative of the Holders, shall be entitled (but not obligated:) (either directly or through one or more acquisition vehicles), for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such Disposition, to use and apply any or all of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such Disposition and (B) the Collateral Agent or any Holder may be the purchaser or licensor of any or all of such Collateral at any such Disposition.
(F) Each of the Holders hereby irrevocably authorizes the Collateral Agent, on behalf of all Holders, to take any of the following actions (but the Collateral Agent shall have no obligation so to do):
(i) consent to act upon directions purported the Disposition of all or any portion of the Collateral free and clear of the Liens securing the Obligations in connection with any such Disposition or other transfer pursuant to be delivered to it by the applicable provisions of any PersonDebtor Relief Law, including Section 363 of the Bankruptcy Code;
(ii) to foreclose upon credit bid all or otherwise enforce any Lien created under portion of the Obligations, or purchase all or any portion of the Collateral Documents; or(in each case, either directly or through one or more acquisition vehicles), in connection with any Disposition of all or any portion of the Collateral pursuant to the applicable provisions of any Bankruptcy Law, including Section 363 of the Bankruptcy Code;
(iii) except as expressly credit bid all or any portion of the Obligations, or purchase all or any portion of the Collateral (in each case, either directly or through one or more acquisition vehicles), in connection with any Disposition of all or any portion of the Collateral pursuant to the applicable provisions of the UCC, including pursuant to Sections 9-610 or 9-620 of the UCC; and/or
(iv) credit bid all or any portion of the Obligations, or purchase all or any portion of the Collateral (in each case, either directly or through one or more acquisition vehicles), in connection with any foreclosure or other Disposition conducted in accordance with applicable law following the occurrence of an Event of Default, including by power of sale, judicial action or otherwise; it being understood that no Holder shall be required to fund any amounts in connection with any purchase of all or any portion of the Collateral by the Collateral Agent pursuant to the foregoing clauses (ii), (iii) or (iv) without its prior written consent.
(G) Each Holder and each other Secured Party agrees that the Collateral Agent is under no obligation to credit bid any part of the Obligations or to purchase or retain or acquire any portion of the Collateral; provided that, in Section 17.03connection with any credit bid or purchase under clause (ii), (iii) or (iv) of the preceding paragraph, the Obligations owed to take any other action whatsoever with regard to any or all of the LiensHolders (other than with respect to contingent or unliquidated liabilities as set forth in the next succeeding paragraph and obligations owed to the Trustee or Collateral Agent) shall be entitled to be, and shall be, credit bid by the Collateral Documents or CollateralAgent on a ratable basis.
(dH) The Collateral Agent will be accountable only for amounts With respect to each contingent or unliquidated claim that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documentsis an Obligation, the Collateral Agent is hereby authorized, but is not required, to estimate the amount of any such claim for purposes of the credit bid or purchase so long as the fixing or liquidation of such claim would not unduly delay the ability of the Collateral Agent to credit bid the Obligations or purchase the Collateral at such Disposition. In the event that the Collateral Agent, in its sole and absolute discretion, elects not to estimate any such contingent or unliquidated claim or any such claim cannot be estimated without unduly delaying the ability of the Collateral Agent to credit bid or purchase in accordance with the second preceding paragraph, then those of the contingent or unliquidated claims not so estimated shall be disregarded, shall not be credit bid, and shall not be entitled to any interest in the portion or the entirety of the Collateral purchased by means of such credit bid.
(I) Each Secured Party whose Obligations are credit bid under clauses (ii), (iii) or (iv) of the paragraph (f) above shall be entitled to conclusively rely upon and enforce each and all receive interests in the Collateral or other asset or assets acquired in connection with such credit bid (or in the Capital Stock of the rights, privileges, immunities, indemnities and benefits acquisition vehicle or vehicles that are used to consummate such acquisition) on a ratable basis in accordance with the percentage obtained by dividing (x) the amount of the Trustee under Article 7; provided Obligations of such Secured Party that any references were credit bid in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”credit bid or Disposition, by (y) the aggregate amount of all Obligations that were credit bid in such credit bid or Disposition.
(fJ) [Reserved.]
(K) Nothing contained herein shall be deemed to authorize the Collateral Agent to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Holder or to authorize the Collateral Agent to vote in respect of the claim of any Holder in any such proceeding.
(L) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(gM) At The Collateral Agent may perform any and all times when the Trustee is not itself of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Collateral Agent, and the Company will deliver Collateral Agent shall not be liable for the misconduct or negligence of any sub-agent appointed with due care. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective officers, employees and agents. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Trusteeofficers, which shall deliver to the Holders employees and agents of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies any such sub-agent, and shall apply to their respective activities in connection with the syndication of all documents delivered the credit facilities provided for herein as well as activities as the Collateral Agent.
(N) The Collateral Agent may resign in accordance with Section 12.07 as though references to the Trustee were references to the Collateral Agent.
(O) Each Holder acknowledges that it has, independently and without reliance upon the Trustee, the Collateral Agent pursuant or any other Holder or any of their Related Parties, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Indenture. Each Holder also acknowledges that it will, independently and without reliance upon the Trustee, the Collateral Agent or any other Holder or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Indenture, any other Note Document or related agreement or any document furnished hereunder or thereunder. Except for notices, reports and other documents expressly required to be furnished to the Holders by the Collateral DocumentsAgent herein, the Collateral Agent shall not have any duty or responsibility to provide any Holder with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Note Parties or any of their respective Affiliates which may come into the possession of the Collateral Agent or any of its Related Parties.
(P) Each Holder, by purchasing Notes and becoming a Holder hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Note Document.
(Q) [Reserved]
Appears in 1 contract
Collateral Agent. (a) The U.S. Bank National Association shall act as Collateral Agent agrees that it will hold the security interests and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Collateral created under the Collateral Documents to which it is a party as contemplated by this IndentureSecurity Documents, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor neither the Collateral Agent nor any of their its respective officers, directors, employees, attorneys employees or agents will shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose collect or realize upon or otherwise enforce any of the Liens Collateral or Collateral Documents or for any delay in doing so. Neither the Trustee nor the Collateral Agent nor so or shall be under any of their respective officers, directors, employees, attorneys obligation to sell or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing otherwise dispose of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at upon the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon Person or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to the Collateral or any or all of the Liens, Collateral Documents or Collateral.
(d) part thereof. The Collateral Agent will shall be accountable only for amounts that it actually receives as a result of the enforcement exercise of such powers, and neither the Liens Collateral Agent nor any of its officers, directors, employees or Collateral Documentsagents shall be responsible for any act or failure to act hereunder, except for its own willful misconduct, negligence or bad faith.
(eb) In acting The Administrative Agent, as Collateral Agent hereunder Agent, is authorized and directed to (i) enter into the Security Documents, (ii) enter into the Intercreditor Agreement, (iii) bind the Lenders on the terms as set forth in the Security Documents and the Intercreditor Agreement and (iv) perform and observe its obligations under the Security Documents and the Intercreditor Agreement.
(c) If the Borrower (i) incurs Indebtedness constituting Senior Debt at any time when no Intercreditor Agreement is in effect or at any time when Indebtedness constituting First-Lien Obligations entitled to the benefit of an existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Collateral DocumentsAgent an Officer’s Certificate so stating and designating such Senior Debt as First-Lien Obligations 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 be entitled to conclusively rely upon (and enforce each is hereby authorized and all of directed to) enter into such Intercreditor Agreement and other documents referenced in the rightsIntercreditor Agreement in connection therewith, privilegesbind the Lenders on the terms set forth therein, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” perform and any references to “negligence” shall be references to “gross negligence”observe its obligations thereunder.
(fd) The Collateral Agent shall be entitled to rely uponIf (i) the Borrower at any time incurs any Indebtedness constituting Other Second-Lien Obligations, and shall not incur any liability for relying upon(ii) the indenture or agreement governing such Indebtedness provides that, any noticenotwithstanding the date, requestmanner or order of grant, certificate, consent, statement, instrument, document attachment or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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 perfection of any such counsel, accountants or experts.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered Liens granted to the Collateral Agent under the Security Documents (the “Liens Securing Loan Note Obligations”) or granted to the holders of Other Second-Lien Obligations or any agent or representative for the holders of Other Second-Lien Obligations (the “Liens Securing Other Second-Lien Obligations”), the Liens Securing Loan Note Obligations and copies the Liens Securing Other Second-Lien Obligations shall be of all equal dignity, priority and rank, (iii) the Borrower delivers to the Collateral Agent an Officer’s Certificate so stating and requesting that the Collateral Agent serve as collateral agent and enter into security documents delivered with respect thereto and (iv) the Borrower delivers to the Collateral Agent an Opinion of Counsel stating that, in the opinion of such counsel, the Collateral Agent is empowered and obligated (on substantially the terms applicable to the Collateral Agent pursuant to the Credit Documents) to hold the Liens Securing Loan Note Obligations and all Liens Securing Other-Second Lien Obligations and all proceeds of all such Liens for the equal and ratable benefit of the holders of all Obligations secured thereby, giving effect to the assignment or transfer requested in such Officer’s Certificate, then (A) the Liens Securing Loan Note Obligations shall be of equal dignity, priority and rank with all such Liens Securing Other Second-Lien Obligations and (B) the Collateral DocumentsAgent shall enter into such security documents as requested in such Officer’s Certificate.
Appears in 1 contract
Sources: Senior Subordinated Loan Agreement (J Crew Group Inc)
Collateral Agent. (a) The Collateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations responsibilities except those expressly set forth assumed by it in this Agreement, the Note Indenture and the Security Documents and shall not be required to take any action which it is a partycontrary to applicable law or any provision of this Agreement, and its duties hereunder the Indenture or the Security Documents. Where the Collateral Agent is permitted but not required to take any action pursuant to any Security Document, the Collateral Agent may take any such action but shall be administrative in nature. Without limiting have no obligation to take any such action without the generality direction of the foregoing, (1) Directing Creditors and the Collateral Agent shall not be subject liable to any fiduciary party for not taking such action if the Directing Creditors have not directed the Collateral Agent to take such action. The Collateral Agent makes no representation as to the existence, validity, value, genuineness, perfection, priority or the collectability of any security or other implied duties, regardless of whether a Default document or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in the other Note Documents with reference instrument held by or delivered 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 and 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, (2) the Agent. The Collateral Agent shall not have be called upon to advise any duty party as to the wisdom in taking or refraining to take any discretionary action or exercise any discretionary powers, except discretionary rights with respect to the Collateral.
(b) The Collateral Agent has accepted and powers that are expressly contemplated is bound by the Note Security Documents thatdelivered to it as of the date of this Agreement and, subject to this Article VI, shall accept and be bound by all Security Documents delivered to it at any time after the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage date of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents)this Agreement; provided that the Collateral Agent shall not otherwise be required bound by, or obligated to take cognizance of the provisions of, 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents agreement to which it is not a party, including any Pari Passu Lien Agreement, the Collateral Agent shall not have any duty to discloseCredit Agreement, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of Secured Document to which its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacitynot a party. The Collateral Agent shall not be liable responsible for any action taken or not taken by it compliance with the consent terms of any Security Document by any Grantor or at the request of the Administrative Determination Holder(s), prior party related thereto and shall have no duty to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders monitor any such compliance.
(or such other number or percentage of the Holders as shall be necessary, or as the c) The Collateral Agent shall believe in good faith shall be necessarymay at any time solicit confirmatory instructions, under including from the circumstances as provided in the Note Documents) Directing Creditors or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment an order of a court of competent jurisdiction, as to any action which it may be requested or required to take, or which it may propose to take, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge the performance of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or its obligations under any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or CollateralSecurity Document.
(d) The Collateral Agent will shall not be accountable only responsible or liable for amounts that any action taken or omitted to be taken by it actually receives as a result of the enforcement of the Liens hereunder or Collateral Documentsunder any Security Document, except for its own gross negligence, bad faith or willful misconduct.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the The Collateral Agent shall be entitled to conclusively rely require that all agreements, certificates, opinions, instruments and other documents at any time submitted to it, including those expressly provided for in this Agreement, be delivered to it in a form and upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 substantive provisions reasonably satisfactory to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”it.
(f) The Collateral Agent shall be entitled to may rely upon, and shall not incur conclusively upon any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document notice or other writing document (including any electronic message, Internet or intranet website posting or other distributiontransmission) reasonably believed by it to be genuine and correct and to have been signed, signed or sent by or otherwise authenticated by on behalf of the proper Person (whether or Persons and need not such Person investigate any fact or matter stated in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereondocument. The Collateral Agent may consult with seek and rely upon any judicial order or judgment, upon any advice, opinion or statement of legal counsel, independent accountants consultants and other experts selected by itit in good faith and upon any certification, instruction, notice or other writing delivered to it by any Grantor in compliance with the provisions of this Agreement or the other Security Documents or delivered to it by the Trustee or Pari Passu Lien Agent as to Secured Parties whose action or consent is required for an instruction of Directing Creditors, without being required to determine the authenticity thereof or the correctness of any fact stated therein or the propriety or validity of service thereof. The Collateral Agent may act in reliance upon any instrument comporting with the provisions of this Agreement or any signature reasonably believed by it to be genuine and may assume that any Person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. To the extent an officers’ certificate or an opinion of counsel is required or permitted under this Agreement or any Security Document to be delivered to the Collateral Agent in respect of any matter, the Collateral Agent may rely conclusively on such officers’ certificate or opinion of counsel as to such matter. The Collateral Agent may request an opinion of counsel, a certificate of an officer of a Grantor, or both, at any time when it is required or requested to take any action hereunder or under any Security Document stating that such action is permitted or authorized pursuant to the terms hereof and of the Secured Documents and that all conditions precedent to the taking of such action have been complied with and the Collateral Agent may rely conclusively on such officer’s certificate or opinion of counsel with respect thereto. Whenever the Collateral Agent shall be required, in connection with the exercise of its rights or the performance of its obligations hereunder, to determine the existence or amount of any Secured Obligations, or the existence of any Lien securing any such obligations, or the Collateral subject to any such Lien, it may request that such information be furnished to it in writing by the Trustee or the Pari Passu Lien Agent, as applicable and shall be entitled to conclusively rely on the information so furnished; provided, however, that if Trustee or the Pari Passu Lien Agent, as applicable, shall fail or refuse reasonably promptly to provide the requested information, the Collateral Agent shall be entitled, but not obligated, to make any such determination by such method as it may, in the exercise of its good faith judgment, determine, including by reliance upon a certificate of the Issuer. The Collateral Agent may rely conclusively, and shall not be liable for fully protected in so relying, on any action taken or not taken determination made by it in accordance with the advice provisions of the preceding sentence (or as otherwise directed by a court of competent jurisdiction) and shall have no liability to the Grantor, any Secured Party, or any other person as a result of such counsel, accountants or expertsdetermination.
(g) At all times when The Collateral Agent shall not be required to inquire as to the occurrence or absence of any Event of Default under the Indenture, the Pari Passu Lien Agreement or any other Secured Document and shall not be affected by or required to act upon any notice or knowledge as to the occurrence of any Event of Default unless and until it receives a notice from the Trustee is or the Pari Passu Lien Agent to such effect.
(h) As to any matter not itself expressly provided for by this Agreement, the Collateral Agent shall act or refrain from acting as directed by the Directing Creditors and shall be fully protected in doing so.
(i) The Collateral Agent shall not be required to advance or expend any funds or otherwise incur any financial liability in the performance of its duties or the exercise of its powers or rights hereunder unless it has been provided with security or indemnity which it, in its discretion, deems sufficient against any and all liability or expense which may be incurred by it by reason of taking or continuing to take such action. The Directing Creditors hereby jointly and severally agree to provide such security or indemnity to the Collateral Agent promptly upon request by the Collateral Agent therefor.
(i) The Collateral Agent may resign at any time by giving not less than 45 days’ notice of resignation to the Trustee, the Pari Passu Lien Agent and the Issuer, and (ii) the Collateral Agent may be removed at any time, with or without cause, pursuant to the instructions of the Directing Creditors. If the Collateral Agent on the date of this Agreement resigns at any time, the Trustee shall automatically succeed to all the rights and obligations of the then existing Collateral Agent and the Security Documents and shall become a successor Collateral Agent for all intents and purposes hereunder and under the Security Documents without any further action by any party.
(k) Upon the resignation or removal of the Collateral Agent, a successor Collateral Agent may be appointed by the Company will Trustee and the Pari Passu Lien Agent, acting jointly, or by the instructions of the Directing Creditors, in each case with the consent (not to be unreasonably withheld) of the Issuer; provided that such consent shall not be required if the successor Collateral Agent is the Trustee or any Pari Passu Lien Agent. If no successor Collateral Agent shall have been so appointed and shall have accepted such appointment within 45 days after the retiring Collateral Agent gave notice of resignation or was removed, the retiring Collateral Agent may appoint a successor Collateral Agent, or petition at the expense of the Secured Parties a court of competent jurisdiction for appointment of a successor Collateral Agent, which shall be a bank or trust company (i) authorized to exercise corporate trust powers, (ii) acceptable to the Trustee and the Pari Passu Lien Agent, (iii) having a combined capital and surplus of at least $50,000,000 and (iv) maintaining an office in New York, New York.
(l) When the Person so appointed as successor Collateral Agent accepts such appointment:
(i) such Person shall succeed to and become vested with either all the rights, powers, privileges and duties of the predecessor Collateral Agent or such other rights, powers, privileges and duties as may be agreed in writing at the time of appointment, and upon appointment of such Person as Collateral Agent the predecessor Collateral Agent shall be discharged from its duties and obligations hereunder, and
(ii) the predecessor Collateral Agent, upon payment of all amounts owed to it, shall promptly transfer all Collateral within its possession or control to the possession or control of the successor Collateral Agent and shall execute and deliver such notices, instructions and assignments as may be necessary or desirable or reasonably requested by the successor Collateral Agent to transfer to the successor Collateral Agent all Liens, interests, rights, powers and remedies of the predecessor Collateral Agent in respect of the Collateral or under the Security Documents. Thereafter the predecessor Collateral Agent shall remain entitled to enforce the immunities granted to it in this Article VI.
(m) The Collateral Agent shall be deemed to possess all of the rights and protections provided to the Trustee under the Indenture, including without limitation all of the rights provided to the Trustee in Sections 7.01, 7.02, 7.03, 7.04 and 7.07 of the Indenture. Without limiting the generality of this Section 6.21, except as expressly set forth in this Agreement, the Collateral Agent shall have no duties or obligations to any Secured Parties, the Trustee, which shall deliver to the Holders Pari Passu Lien Agent, or the holders of any Notes, copies Pari Passu Lien Indebtedness or any other Secured Obligation (including, without limitation, any fiduciary obligations). Each of all the Trustee, the Pari Passu Lien Agent, any Secured Parties, and the holders of any Senior Secured Notes and any Pari Passu Lien Indebtedness acknowledges and agrees that (i) entering into this Agreement is an arm’s-length transaction among the parties hereto, and the parties hereto are capable of evaluating and understanding and understand and accept the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in connection with each transaction contemplated hereby and the process leading to such transaction, the Collateral Documents delivered Agent is and has been acting solely as a principal and is not the agent or fiduciary of any of the parties hereto, the holders of any Notes or Pari Passu Lien Indebtedness or their respective affiliates, stockholders, creditors or employees or any other party; (iii) the Collateral Agent has not assumed and will not assume an advisory or fiduciary responsibility in favor of any party with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective of whether the Collateral Agent or its affiliates has advised or is currently advising any other party on other matters) or any other obligation to any party other than the obligations expressly set forth in this Agreement; (iv) the Collateral Agent and copies its affiliates may be engaged in a broad range of all documents delivered to transactions that involve interests that differ from those of the other parties hereto and the Collateral Agent pursuant has no obligation to the Collateral Documents.disclose any of such interests by virtue of any fiduciary or advisory relationship; and
Appears in 1 contract
Collateral Agent. (a) The 14.1 By their execution of the Omnibus Signature Page to the Purchase Agreement and this Agreement, each of the Noteholders have agreed to appoint a Collateral Agent agrees that it will hold the security interests in upon an Event of Default and hereby authorize the Collateral created under the Collateral Documents Agent to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, exercise for the benefit ofof the Noteholders all rights, powers and remedies provided to it under or pursuant to this Agreement, including all rights, powers and remedies upon an Event of Default, subject always to the terms, conditions, limitations and restrictions provided in this Agreement. Except with respect to those matters as to which the Collateral Agent is expressly required to act under the terms of this Article XIV, the Secured PartiesCollateral Agent may act or refrain from acting with the written consent of the Requiste Holders, without limiting which Requisite Holders shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder such direction shall not be personally liable in conflict with any rule of law or expose the Collateral Agent to personal liability, and the Collateral Agent may take any action deemed proper by reason the Collateral Agent, in its discretion, which is not inconsistent with such direction or the terms of any act or omission of any other collateral agent hereunderthis Agreement.
(b) 14.2 The Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement. Neither the Trustee nor the Collateral Agent nor any of their respective its partners, members, shareholders, officers, directors, employees, attorneys employees 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken omitted by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or as such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) Agreement or hereunder or in connection herewith or therewith, be responsible for the absence consequence of any oversight or error of judgment or answerable for any loss, unless caused by its own or their gross negligence or willful misconduct as determined by the a final and non-appealable judgment (not subject to further appeal) of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge duties of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon mechanical and enforce each and all of administrative in nature; the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) The Collateral Agent shall be entitled to rely upon, not have by reason of the Agreement or any other transaction document a fiduciary relationship in respect of any Grantor or any Noteholder; and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth nothing in the Note Documents for being the signatoryAgreement or any other transaction document, sender expressed or authenticator thereof). The Collateral Agent also may rely implied, is intended to or shall be so construed as to impose upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent any obligations in respect of the Agreement or any other transaction document except as expressly set forth herein and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documentstherein.
Appears in 1 contract
Sources: Security Agreement (BeesFree, Inc.)
Collateral Agent. (a) The Collateral Agent agrees that it will hold Notwithstanding anything else to the security interests contrary herein, whenever reference is made in the Collateral created under this Indenture or the Collateral Documents (including the LGA/DCA Intercreditor Agreement, any IP Intercreditor Agreement or any Other Junior First Intercreditor Agreement) to which it is a party as contemplated by this Indentureany discretionary action by, and any and all proceeds thereofconsent, for the benefit 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 Secured PartiesCollateral Agent or to any election, without limiting 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’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative understood that in nature. Without limiting the generality of the foregoing, (1) all cases the Collateral Agent shall not be subject fully justified in failing or refusing to take any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent action if it shall not have any duty to take any discretionary action received written instruction, advice or exercise any discretionary powersconcurrence from, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereofas applicable, the Collateral Agent is required to exercise as directed in writing by Controlling Party or the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders Applicable Party (or Holders representing such number or percentage of outstanding aggregate principal of the Holders Notes as shall be necessaryexpressly provided for herein or in any other Collateral Document) in respect of such action and, if it so requests, it shall first be indemnified to its satisfaction 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 have no liability for any failure or delay in taking any actions contemplated above as a result of a failure or delay on the part of the Controlling Party, the Applicable Party or such Holders, as applicable, to provide such instruction, advice or concurrence. This provision is intended solely for the benefit of the Collateral Agent shall believe in good faith and its successors and permitted assigns and is not intended to be necessaryand will not entitle the other parties hereto to any defense, under claim or counterclaim, or confer any rights or benefits on any party hereto. Subject to the circumstances as provided in foregoing (and the Note Documents); provided that other provisions of this Section 12.15) and the terms of the Collateral Agent shall not be required to take Documents and any action that, in its opinion or the opinion other applicable provisions of its counsel, may expose the Collateral Agent to liability or that is contrary to any Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a partythis Indenture, the Collateral Agent shall not have any duty take such action with respect to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it requested by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or CollateralControlling Party.
(db) The Collateral Agent will may resign at any time by notice to the Trustee and the Company, such resignation to be accountable only for amounts that it actually receives as effective upon the acceptance of a result of the enforcement of the Liens or Collateral Documents.
(e) In acting successor agent to its appointment as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counselbe removed by the Company at any time, 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.
(g) At all times when the Trustee is not itself upon thirty days written notice to the Collateral Agent. If the Collateral Agent resigns or is removed under this Indenture, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.appoint a successor collateral agent. If no
Appears in 1 contract
Sources: Indenture (American Airlines, Inc.)
Collateral Agent. (a) The Each Lender hereby appoints the Collateral Agent agrees that it will hold to act as its agent for the security interests purposes set forth in this Agreement, the Swap, the Collateral created under Sharing Agreement and the other Security Documents and irrevocably authorizes the Collateral Documents Agent to which it is a party exercise such powers as contemplated by this Indentureare specifically delegated hereunder or thereunder or are reasonably incidental thereto and to take, and any and all proceeds thereofor refrain from taking, for the benefit of, the Secured Parties, without limiting such actions as agent on its behalf as are delegated to the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of Agent by the security interest in the Collateralterms hereof and thereof. The Collateral Agent is authorized shall hold the Collateral and empowered shall preserve and protect the interests of the Creditors in the Collateral and maintain records of the Collateral. Subject to appoint one or more co-collateral agents as it deems necessary or appropriate; providedthe terms and conditions of the Collateral Sharing Agreement, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for take such action to enforce the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency rights of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon Creditors in the Collateral as shall be directed by the Lenders (or, as applicable, the Creditors) or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor may be determined by the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will to be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent appropriate and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents thatnecessary, subject to the terms hereof, other provisions of this Section 11 relating to indemnification and protection of the Collateral Agent is required for its action or its failure to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, act. In performing its functions and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, duties under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a partythis Agreement, the Collateral Agent shall not have any duty to disclose, act solely as agent for the Creditors and shall not assume nor be liable for the failure deemed to disclose, have assumed any information obligation or relationship of agency or trust with Southland or any other party to an agreement relating to any Note Party this transaction other than as expressly set forth herein or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken other agreement relating hereto, including the obligation assumed by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives acting as a result depositary of the enforcement funds of the Liens or Collateral DocumentsSouthland.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.
Appears in 1 contract
Collateral Agent. (a) The U.S. Bank National Association shall initially act as Collateral Agent agrees that it will hold the security interests and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Collateral created under Security Documents or the Collateral Documents to which it is a party as contemplated by this IndentureIntercreditor Agreements, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor neither the Collateral Agent nor any of their respective its officers, directors, employees, attorneys employees or agents will shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose collect or realize upon or otherwise enforce any of the Liens Notes Collateral or Collateral Documents or for any delay in doing soso or shall be under any 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 Notes Collateral or any part thereof. Neither Notwithstanding any provision to the Trustee nor contrary contained elsewhere in this Indenture, the Intercreditor Agreements or the Security Documents, the duties of the Collateral Agent nor any of their respective officersshall be ministerial and administrative in nature, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain and the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations responsibilities, except those expressly set forth in this Indenture, in the Note Intercreditor Agreements and in the Security Documents to which it 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 Trustee, any Holder, the Issuer or any Guarantor, and its duties hereunder no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be administrative in natureread into this Indenture, the Intercreditor Agreements or the Security Documents or shall otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoingforegoing sentence, the use of the term “agent” herein or “Agent” in this Indenture, the Intercreditor Agreements and in the other Note 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 and insteadapplicable 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement 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 or gross negligence (as determined by a final, non-appealable order of a court of competent jurisdiction).
(b) The Collateral Agent is authorized and directed to (i) enter into the Security Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the 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 Liens 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 DocumentsAgent in connection with any action required or permitted by this Indenture, the Security Documents or the Intercreditor Agreements.
(e) In acting as The Collateral Agent hereunder and under 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, a Holder 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 or the Holders of a majority in aggregate principal amount of the Securities subject to this Article 11.
(f) No provision of this Indenture or any Security Document shall require the Collateral Agent (or the Trustee) 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 Holders (or the 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.
(g) The Collateral Agent shall not be responsible in any manner to any of the Trustee or any Holder for the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents or the Intercreditor Agreements or for any failure of the Issuer, 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 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 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 shall be entitled may hold or obtain indicia of ownership primarily to conclusively rely upon and enforce each and all protect the security interest of the rights, privileges, immunities, indemnities Collateral Agent in the Notes Collateral and benefits of the Trustee under Article 7; provided that any references such actions taken by the Collateral Agent shall not be construed as or otherwise constitute any participation in the management of such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”Notes Collateral.
(fi) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by two Officers pursuant to this Section 11.09(i) (a “Security Document Order”), the Collateral Agent is hereby authorized to execute 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) 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 rely uponall 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 not incur apply to the Collateral Agent in its roles under any liability for relying uponSecurity Document or the Intercreditor Agreements, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets expressly stated therein.
(l) In relation to the requirements set forth in Swiss Security Documents the Note Documents for being the signatory, sender or authenticator thereof). following additional provisions shall apply:
(i) The Collateral Agent also may rely upon holds:
(A) any statement made security created or expressed to it orally be created under or pursuant to the Swiss Security Documents by telephone way of a security assignment (Sicherungsabtretung) or transfer for security purposes (Sicherungsübereignung) or any other non-accessory (nicht akzessorische) security;
(B) the benefit of this Section 11.09(l); and
(C) any proceeds and believed by it to have been made by other benefits of such security as fiduciary (treuhänderisch) in its own name but for the proper Person account of any Holder of Securities, the Trustee and any other Secured Party (whether or not such Person in fact meets the requirements set forth as defined in the Note Documents for being Collateral Agreement) which have the maker thereof), and may act upon any benefit of such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it security in accordance with the advice Finance Documents and the respective Swiss Security Documents;
(ii) each Holder of Securities, the Trustee and any other Secured Party (as defined in the Collateral Agreement) hereby authorizes the Collateral Agent:
(A) to accept and execute as its direct representative (direkter Stellvertreter) any Swiss law pledge or any other Swiss law accessory (akzessorische) security created or expressed to be created under or pursuant to the Swiss Security Documents for the benefit of such Holder of Securities, the Trustee and any other Secured Party (as defined in the Collateral Agreement) and hold, administer and, if necessary, enforce any such counsel, accountants or experts.security on behalf of each relevant Secured Party (as defined in the Collateral Agreement) which has the benefit of such security;
(gB) At all times when to agree as its direct representative (direkter Stellvertreter) to amendments and alterations to any Swiss Security Documents which creates a pledge or any other Swiss law accessory (akzessorische) security;
(C) to effect as its direct representative (direkter Stellvertreter) any release of a security created under the Trustee is not itself Swiss Security Documents in accordance with this Indenture; and
(D) to exercise as its direct representative (direkter Stellvertreter) such other rights granted to the Collateral Agent hereunder or under the relevant Swiss Security Documents; and
(iii) the Issuer and each Guarantor hereby authorize the Collateral Agent, when acting in its capacity as creditor of the Company will deliver Parallel Debt claims as set forth in Section 11.10, to hold:
(A) any Swiss law pledge or any other Swiss law accessory (akzessorische) security;
(B) any proceeds of such security; and
(C) the Trusteebenefit of this Section 11.09(l) and of the Parallel Debt claims, which shall deliver to as creditor in its own right but for the benefit of the Holders of NotesSecurities, copies of all Collateral Documents delivered to the Trustee or any other Secured Party (as defined in the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral DocumentsAgreement) in accordance with this Indenture.
Appears in 1 contract
Sources: Indenture (Quotient LTD)
Collateral Agent. (a) The Collateral Agent agrees that it will hold Notwithstanding anything else to the security interests contrary herein, whenever reference is made in the Collateral created under this Indenture or the Collateral Documents to which it is a party as contemplated by this Indentureany discretionary action by, and any and all proceeds thereofconsent, for the benefit 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 Secured PartiesCollateral Agent or to any election, without limiting 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’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative understood that in nature. Without limiting the generality of the foregoing, (1) all cases the Collateral Agent shall not be subject fully justified in failing or refusing to take any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent action if it shall not have any duty to take any discretionary action received written instruction, advice or exercise any discretionary powersconcurrence from, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereofas applicable, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Required Holders (or Holders representing such number or percentage of outstanding aggregate principal of the Holders Notes as shall be necessaryexpressly provided for herein or in any other Collateral Document) in respect of such action and, if it so requests, it shall first be indemnified to its satisfaction 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 have no liability for any failure or delay in taking any actions contemplated above as a result of a failure or delay on the part of the Required Holders or such Holders, as applicable, to provide such instruction, advice or concurrence. This provision is intended solely for the benefit of the Collateral Agent shall believe in good faith and its successors and permitted assigns and is not intended to be necessaryand will not entitle the other parties hereto to any defense, under claim or counterclaim, or confer any rights or benefits on any party hereto. Subject to the circumstances as provided in foregoing (and the Note Documents); provided that other provisions of this Section 12.16) and the terms of the Collateral Agent shall not be required to take Documents and any action that, in its opinion or the opinion other applicable provisions of its counsel, may expose the Collateral Agent to liability or that is contrary to any Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a partythis Indenture, the Collateral Agent shall not have any duty take such action with respect to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it requested by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Required Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(db) The Collateral Agent will may resign at any time by notice to the Trustee and the Company, such resignation to be accountable only for amounts that it actually receives as effective upon the acceptance of a result of the enforcement of the Liens or Collateral Documents.
(e) In acting successor agent to its appointment as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counselbe removed by the Company at any time, 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.
(g) At all times when the Trustee is not itself upon thirty days written notice to the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to . If the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.resigns or is
Appears in 1 contract
Collateral Agent. (a) The Collateral Agent Section 10.1 Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or authorized to act for, any other Lender. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and not investments in a business enterprise or securities.
Section 10.2 Each Lender, by signing this Agreement (i) represents that it will hold the security interests is engaged in making, acquiring or holding commercial loans in the Collateral created under the Collateral Documents ordinary course of its business and has, independently and without reliance upon any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to which it is enter into this Agreement as a party as contemplated by this IndentureLender, and any and all proceeds thereofto make, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation acquire or hold its portion of the security interest in the Collateral. The Collateral Agent is authorized Loan hereunder and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, (ii) expressly acknowledges that no collateral agent hereunder shall be personally liable by reason of any act or omission of neither any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral Agent Lender nor any of their its respective officers, directors, employees, agents, attorneys in fact have made any representations or agents warranties to it and that no act by any other Lender hereafter taken, including any review of the affairs of a Relevant Party, shall be deemed to constitute any representation or warranty by any Lender. Each Lender shall, independently and without reliance upon any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder and in deciding whether or to the extent to which it will be responsible continue as a lender or liable assign or otherwise transfer its rights, interests and obligations hereunder.
Section 10.3 U.S. Bank Trust Company, National Association has been appointed Collateral Agent for the existencebenefit of Lenders hereunder pursuant to the Collateral Agency Agreement. It is expressly understood and agreed by the parties hereto that any authority conferred upon Collateral Agent hereunder is subject to the terms of the delegation of authority made by Lenders to Collateral Agent pursuant to the Collateral Agency Agreement, genuinenessand that Collateral Agent has agreed to act (and any successor Collateral Agent shall act) as such hereunder only on the express conditions contained in the Collateral Agency Agreement (including the rights and protections of Collateral Agent thereunder). Any successor Collateral DB1/ 149149761.5 Agent appointed pursuant to the Collateral Agency shall be entitled to all the rights, value or protection interests and benefits of Collateral Agent hereunder.
Section 10.4 Collateral Agent is a “representative” of Lenders within the meaning of the term “secured party” as defined in the UCC. ▇▇▇▇▇▇▇ hereby authorize and direct Collateral Agent to enter into each of the Collateral Documents and the other Loan Documents and to take all action contemplated by such documents. Lenders agree that they shall not have the right individually to seek to realize upon the security granted by any CollateralCollateral Document, it being understood and agreed that such rights and remedies may be exercised solely by Collateral Agent (for the legality, enforceability, effectiveness, or sufficiency benefit of Lenders) upon the terms of the Collateral Documents, . In the event that any Collateral is hereafter pledged by any Person as collateral security for the creationObligations, perfection, priority, sufficiency or protection pursuant to the terms of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral Agency Agreement, Collateral Agent shall be authorized, and shall be granted a power of attorney, to execute and deliver on behalf of Lenders any Collateral Documents necessary or otherwise appropriate to grant and perfect a Lien on such Collateral in favor of Collateral Agent on behalf of Lenders. Lenders have authorized Collateral Agent to release any Lien granted to or held by Collateral Agent upon any Collateral (i) as to expressly described herein; (ii) as permitted by, but only in accordance with, the maintenance terms of the Collateralapplicable Loan Document; or (iii) if approved, authorized or for ratified in writing by the Required Lenders (unless such release is required to be approved by all of Lenders hereunder). Upon request by Collateral Agent at any defect time, ▇▇▇▇▇▇▇ will confirm in writing Collateral Agent’s authority to release particular types or deficiency items of Collateral pursuant hereto. DB1/ 149149761.5 The parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written. MLIC LENDER: METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation By: MetLife Investment Management, LLC, its investment manager By: Name: ▇▇▇▇▇▇▇ ▇▇▇▇ Its: Authorized Signatory MTLIC LENDER: METROPOLITAN TOWER LIFE INSURANCE COMPANY, a Nebraska corporation By: MetLife Investment Management, LLC, its investment manager By: Name: ▇▇▇▇▇▇▇ ▇▇▇▇ Its: Authorized Signatory DB1/ 149149761.5 BORROWER: VB NINE, LLC, a Delaware limited liability company By: Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Authorized Signatory DB1/ 149149761.5 Each of the undersigned Equity Owner and Parent hereby joins in the execution and delivery of this Agreement and hereby:
(a) represents and warrants that each of the representations and warranties set forth in the Loan Agreement and each other Loan Document and applicable to any such matters, or for any failure it is true and correct as of the date hereof; and
(b) agrees to demand, collect, foreclose or realize upon or otherwise enforce be bound by all of the covenants and agreements set forth in Article V of the Loan Agreement and each other Loan Document applicable to it. The existence and provisions of this Joinder shall in no event be interpreted to imply recourse against any of the Liens Equity Owner or Collateral Parent under the Loan Documents except as otherwise explicitly set forth in the Loan Documents. EQUITY OWNER: VB NINE EQUITY, LLC, a Delaware limited liability company By: Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Authorized Signatory PARENT: VINEBROOK HOMES TRUST, INC., a Maryland corporation By: Name: ▇▇▇▇▇ ▇▇▇▇▇ Title: President DB1/ 149149761.5
(a) Borrower shall obtain and maintain, at its sole cost and expense for the term of this Agreement or any delay cause to be maintained, insurance for Borrower and the Properties providing at least the following coverages:
(i) comprehensive “all risk” or special causes of loss form insurance, as is available in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection insurance market as of the Collateral Agent’s Lien Closing Date, on the Properties (A) in an amount equal to one hundred percent (100%) of the Collateral“full replacement cost”, including which for purposes of this Agreement means actual replacement value of the filing of any UCC financing statementsProperties, continuation statements, Mortgages or any filings subject to a loss limit equal to Fifty Million and No/100ths Dollars ($50,000,000.00) per occurrence; (B) containing an agreed amount endorsement with respect to the U.S. Patent Improvements and Trademark Office personal property at any Property waiving all co insurance provisions or U.S. Copyright Office.
to be written on a no co insurance form and (cC) The Collateral Agent shall not have any duties or obligations except those expressly set forth providing for no deductible in the Note Documents to which excess of Twenty-Five Thousand and No/100ths Dollars ($25,000.00) (it is a partybeing understood that, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a so long as no Default or Event of Default has occurred and is continuing and, without limiting (1) Borrower may utilize a Three Million and No/100ths Dollars ($3,000,000.00) aggregate deductible stop loss subject to a Twenty-Five Thousand and No/100ths Dollars ($25,000.00) per occurrence deductible and a Twenty-Five Thousand and No/100ths Dollars ($25,000.00) maintenance deductible following the generality exhaustion of the foregoing, the use of the term “agent” herein and in 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 and 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 partiesaggregate, (2) the Collateral Agent aggregate stop loss does not apply to any losses arising from named windstorm, earthquake or flood, (3) the perils of named windstorm and the peril of “other wind and hail” shall not be permitted to have a minimum deductible of One Hundred Thousand and No/100ths Dollars ($100,000.00) per occurrence for any duty to take any discretionary action or exercise any discretionary powersand all affected Properties, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject permitted minimum deductible for the named windstorm peril shall be permitted to the terms hereof, the Collateral Agent is required to exercise as directed (a) have a per occurrence deductible in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders certain Tier 1 locations in Texas of three percent (or such number or percentage 3.0%) of the Holders as shall be necessarytotal insurable value of the affected Properties, or as (b) have a per occurrence deductible for properties in Florida of five percent (5.0%) of the Collateral Agent shall believe in good faith to be necessary, under total insurable value of the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Lawsaffected Properties, and (3c) except as expressly set forth have a per occurrence deductible in certain Tier 1 locations from Georgia to Virginia of two percent (2.0%) of the Note Documents to which it is total insurable value of the affected Properties (each with a party, the Collateral Agent shall not have any duty to disclose, minimum deductible of One Hundred Thousand and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable No/100ths Dollars ($100,000.00) per occurrence for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(sall affected Properties), and prior (4) the perils of flood shall be permitted to have a minimum deductible of Fifty Thousand and No/100ths Dollars ($50,000.00) for any and all affected Properties, except that the Braidwell Disposition Dateperils of special flood shall be permitted to have a minimum of Two Hundred Fifty Thousand and No/100ths Dollars ($250,000.00) per occurrence for any and all affected Properties, In addition, Borrower shall obtain (x) flood insurance in an amount equal to Five Million and No/100ths Dollars ($5,000,000.00) applying per occurrence and in the Braidwell Holdersaggregate, and prior (y) with respect to named storm insurance the Deerfield Disposition Date, greater of (1) the Deerfield Holders, as applicable, from time to time amount of coverage in place on the Closing Date and (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by 2) the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
greater of (i) coverage in an amount equal to act the Probable Maximum Loss (PML) or Scenario Expected Limit (SEL) based upon directions purported a storm risk analysis for a 475 year event for the entire portfolio at risk or (ii) one hundred percent ( 100%) of Gross Loss Probable Maximum Loss (Gross Loss PML) or Scenario Expected Limit (SEL) based upon a storm risk analysis for a 10,000-year event for the entire portfolio at risk (such analysis to be delivered secured by Borrower using a third-party firm qualified to it perform such named storm risk analysis using the most current RMS software, or its equivalent, to include consideration of storm surge, if applicable, and loss amplification, at the expense of Borrower at least two (2) times per year or more frequently as may reasonably be requested by Required Lenders and shared with all Lenders); provided, that such flood, earth movement and named storm insurance shall otherwise be on terms consistent with the comprehensive all risk insurance policy required under this Section (a)(i). In addition, Borrower shall obtain the flood insurance coverage described in subclause (x) above for a Property if any Personportion of such Property is currently or at any time in the future located in a federally designated “special flood hazard area,” flood hazard insurance or its equivalent in an amount equal to the maximum amount of such insurance available under the DB1/ 149149761.5 National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended;
(ii) business income or rental loss insurance, written on an “Actual Loss Sustained Basis” (A) with loss payable to foreclose upon Collateral Agent for the benefit of Lenders; (B) covering all risks required to be covered by the insurance provided for in Section (a)(i), (iii), (iv) and (viii); (C) in an amount equal to one hundred percent (100%) of the aggregate projected net income plus continuing expenses from the operation of the Properties for a period of at least twelve (12) months after the date of the Casualty; and (D) containing an extended period of indemnity endorsement which provides that after the physical loss to the Improvements and personal property at a Property has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss, or otherwise enforce any Lien created under the expiration of thirty (30) days from the date that the applicable Property is repaired or replaced and operations are resumed, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period. The amount of such business income or rental loss insurance shall be determined prior to the Closing Date and at least once each year thereafter based on Borrower’s reasonable estimate of the net income from each Property for the succeeding twelve (12) month period. All proceeds payable to Collateral DocumentsAgent for the benefit of Lenders pursuant to this subsection shall be held in the Casualty and Condemnation Subaccount and disbursed to the Cash Management Account during the month to which such proceeds relate (or in the month received if such proceeds relate to a month prior to the month in which such proceeds were received); orprovided, however, that nothing herein contained shall be deemed to relieve Borrower of their obligation to pay the Obligations on the respective dates of payment provided for in this Agreement and the other Loan Documents except to the extent such amounts are actually paid out of the proceeds of such business income insurance;
(iii) except at all times during which structural construction, repairs or renovations are being made with respect to any Property, and only if each of the property coverage form and the liability insurance coverage form does not otherwise apply, (A) owner’s contingent or protective liability insurance, otherwise known as expressly Owner Contractor’s Protective Liability (or its equivalent), covering claims not covered by or under the terms or provisions of the above mentioned commercial general liability insurance policy and (B) the insurance provided for in Section 17.03(a) written in a so-called builder’s risk completed value form including coverage for all insurable hard and soft costs of construction (x) on a non-reporting basis, (y) against all risks insured against pursuant to take Section (a)(i), (iii), (iv) and (viii), (z) including permission to occupy such Property and (C) with an agreed amount endorsement waiving co-insurance provisions;
(iv) commercial general liability insurance against claims for personal injury, bodily injury, death or property damage occurring upon, in or about any other action whatsoever Property, such insurance (A) to be on the so-called “occurrence” form with regard a combined limit of not less than One Million and No/100 Dollars ($1,000,000.00) per occurrence; Two Million and No/100 Dollars ($2,000,000.00) in the aggregate “per location” and overall Twenty Million and No/100 Dollars ($20,000,000.00) in the aggregate; (B) to any or continue at not less than the aforesaid limit until required to be changed by Required Lenders in writing by reason of changed economic conditions making such protection inadequate and (C) to be at least as broad as Insurance Services Offices (ISO) policy form CG 00 01;
(v) if applicable, automobile liability coverage for all owned and non-owned vehicles, including rented and leased vehicles, containing minimum limits per occurrence of One Million and No/100 Dollars ($1,000,000.00);
(vi) if applicable, worker’s compensation subject to the worker’s compensation laws of the Liensapplicable state, Collateral Documents and employer’s liability in amounts reasonably acceptable to Required Lenders; DB1/ 149149761.5
(vii) umbrella and excess liability insurance in an amount not less than Ten Million and No/100 Dollars ($10,000,000.00) per occurrence and in the aggregate on terms consistent with the commercial general liability insurance policy required under Section (a)(iv), and including employer liability and automobile liability, if applicable; and
(viii) upon sixty (60) days’ written notice, such other reasonable insurance, and in such reasonable amounts as Required Lenders from time to time may reasonably request against such other insurable hazards which at the time are commonly insured against for properties similar to the Properties located in or Collateralaround the region in which Properties are located.
(db) The Collateral Agent will All Policies required pursuant hereto shall: (i) be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
obtained under valid and enforceable policies (e) In acting as Collateral Agent hereunder and under the Collateral Documentscollectively, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of “Policies” or in the rightssingular, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligencePolicy”.
(f) The Collateral Agent shall be entitled to rely upon), and shall be subject to the approval of Required Lenders as to insurance companies, amounts, deductibles, loss payees and insureds and (ii) be issued by financially sound and responsible insurance companies authorized to do business in the states where the applicable Properties are located and having a rating of “A3” or better by Moody’s or, if Moody’s does not incur any liability for relying uponprovide a rating of an applicable insurance company, any noticea rating of “A-” or better by S&P or Fitch; provided, requesthowever, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and that if Borrower elects to have been signedits insurance coverage provided by a syndicate of insurers, sent then, if such syndicate consists of five (5) or otherwise authenticated by more members, (A) at least sixty percent (60%) of the proper Person insurance coverage (whether or not seventy-five percent (75%) if such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.syndicate consis
Appears in 1 contract
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association to act as Collateral Agent, and the Collateral Agent agrees shall have the privileges, powers and immunities as set forth herein and in the Security Documents. The Issuer and the Guarantors hereby agree that it will the Collateral Agent shall hold the security interests Collateral in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, trust for the benefit ofof all of the Holders and the Trustee, in each case, pursuant to the Secured Parties, without limiting terms of the Security Documents and the Collateral Agent’s rights, including under this Section 17.02, Agent is hereby authorized to act in preservation of execute and deliver the security interest in the CollateralSecurity Documents. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents Collateral Agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, effectiveness or sufficiency of the Collateral Security Documents, for the creation, perfection, priority, sufficiency or protection of any First-Priority Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the First-Priority Liens or Collateral Security Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, Trustee as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfactionor as required or permitted by the Security Documents, the Collateral Agent will shall not be obligated:
(i1) to act upon directions purported to be delivered to it by any other Person;
(ii2) to foreclose upon or otherwise enforce any Lien created under the Collateral DocumentsFirst-Priority Lien; or
(iii3) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the First-Priority Liens, Collateral Security Documents or Collateral.
(d) The Collateral Agent will shall be accountable only for amounts that it actually receives as a result of the enforcement of the First-Priority Liens or Collateral the Security Documents.
(e) In acting as Collateral Agent hereunder and under the or co-Collateral DocumentsAgent, the Collateral Agent shall be entitled to conclusively and each co-Collateral Agent may rely upon and enforce for its own benefit each and all of the rights, privilegespowers, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 hereof, each of which shall also be deemed to “Trustee” shall be references to “for the benefit of the Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.. 103
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which Issuer shall deliver to the Holders of Notes, Trustee copies of all Collateral Security Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Security Documents.
Appears in 1 contract
Collateral Agent. (a) The Collateral Agent agrees that it will hold shall have all the security interests rights and protections provided in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunderSecurity Documents.
(b) Neither Subject to Section 7.01, neither the Trustee nor the Collateral 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, effectiveness or sufficiency of the Collateral Security Documents, for obtaining or maintaining insurance on any Collateral, for the creation, perfection, priority, sufficiency or protection of any First Priority Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters. Beyond the exercise of reasonable care in the custody thereof, the Trustee shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Trustee, in its capacity as such, 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 maintaining the perfection of any Lien on the Collateral. The Trustee and the Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment equal to that which it accords its own property and shall not be liable or responsible for any failure to demand, collect, foreclose loss or realize upon or otherwise enforce diminution in the value of any of the Liens Collateral, by reason of the act or Collateral Documents omission of any carrier, forwarding agency or any delay in doing so. Neither other agent or bailee selected by the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Officegood faith.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in Subject to the Note Security Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoingFirst Lien Intercreditor Agreement, (1i) the Trustee shall direct the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3ii) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicableTrustee, as required or permitted by this Indenture and any other representatives, and only if indemnified or pursuant to its satisfactionthe Security Documents, the holders acknowledge that Collateral Agent will not be obligated:
(i1) to act upon directions purported to be delivered to it by any other Person;
(ii2) to foreclose upon or otherwise enforce any Lien created under the Collateral DocumentsFirst Priority Lien; or
(iii3) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the First Priority Liens, Collateral Security Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts holders of Notes agree that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, protections, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent by the Security Documents. Furthermore, each holder of a Note, by accepting such Note, consents to the terms of and copies authorizes and directs the Trustee (in each of all documents delivered its capacities) and the Collateral Agent to enter into and perform the First Lien Intercreditor Agreement, Junior Lien Intercreditor Agreement and Security Documents in each of its capacities thereunder.
(e) If the Issuers (i) Incur First Priority Lien Obligations in compliance with this Indenture at any time when the First Lien Intercreditor Agreement is not 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, and (ii) direct the Trustee to deliver to the Collateral Agent pursuant to an Officer’s Certificate so stating and requesting the Collateral DocumentsAgent to enter into an intercreditor agreement (on substantially the same terms as the First Lien Intercreditor Agreement in effect on the Issue Date) in favor of a designated agent or representative for the holders of the First Priority Lien Obligations so Incurred, 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.
Appears in 1 contract
Sources: Indenture (Vici Properties Inc.)
Collateral Agent. (a) The Collateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents Collateral Agents as it deems necessary or appropriate; provided.
(b) Beyond the exercise of reasonable care in the custody thereof, however, that the Collateral Agent shall have no collateral duty as to any Collateral in its possession or control or in the possession or control of any agent hereunder or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Collateral Agent 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 maintaining the perfection of any security interest in the Collateral. The Collateral Agent shall be personally deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of any the act or omission of any carrier, forwarding agency or other collateral agent hereunderor bailee selected by the Collateral Agent in good faith.
(bc) Neither the Trustee nor the The Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will shall not be responsible or liable for the existence, genuineness, genuineness or value or protection 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, for the legality, enforceability, effectiveness, validity or sufficiency of the Collateral Documentsor any agreement or assignment contained therein, for the creationvalidity of the title of the Company to the Collateral, perfection, priority, sufficiency for insuring the Collateral or protection of any Lien, including not being responsible for the payment of any Taxestaxes, charges charges, assessments or assessments Liens upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as . Subject to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any Section 11.02(b) of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a partythis Indenture, the Collateral Agent shall not have any no duty to discloseascertain or inquire as to the performance or observance of any of the terms of this Indenture, and shall not be liable for the failure to discloseIntercreditor Agreement, any information relating to any Note Party the Collateral Agreements or any of its Affiliates that is communicated to or obtained other Security Document by the Person serving as Collateral Issuer, the Guarantors, the First Lien Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders Senior Lenders.
(or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documentsd) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, Trustee from time to time (as required or permitted by this Indenture). The ; provided that in the event of conflict between directions received pursuant to the Security Documents or the Intercreditor Agreement and directions received hereunder, the Collateral Agent will be subject to such directions as may be given received pursuant to it by the Trustee Security Documents or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture)Intercreditor Agreement. Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, Trustee as required or permitted by this Indenture and any other representatives, and only if indemnified representatives or pursuant to its satisfactionthe Security Documents, the Collateral Agent will not be obligated:
(i1) to act upon directions purported to be delivered to it by any other Person;
(ii2) to foreclose upon or otherwise enforce any Lien created under the Collateral DocumentsSecond Priority Lien; or
(iii3) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Second Priority Liens, Collateral Security Documents or Collateral.
(de) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Second Priority Liens or Collateral Security Documents.
(ef) In acting as Collateral Agent hereunder and under the or Co-Collateral DocumentsAgent, the Collateral Agent shall be entitled to conclusively and each Co-Collateral Agent may rely upon and enforce and otherwise enjoys each and all of the rights, privilegespowers, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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 expertsVII hereof.
(g) At all times when The Issuer, Guarantors and the Trustee is not itself holders of Notes agree that the Collateral Agent, whenever acting hereunder, under the Company will deliver Intercreditor Agreement or under any Security Document, shall be entitled to all the Trusteerights, which shall deliver to the Holders of Notesprivileges, copies of all Collateral Documents delivered protections, immunities, indemnities and benefits provided to the Collateral Agent hereunder and copies under the U.S. Collateral Agreement and any other Security Document. Furthermore, each holder of all documents delivered a Note, by accepting such Note, consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Collateral Agent to enter into and perform the Intercreditor Agreement and Security Documents in each of its capacities thereunder.
(h) If the Issuer (i) Incurs First Priority Lien Obligations at any time when no intercreditor agreement 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, and (ii) delivers to the Collateral Agent pursuant to an Officer’s Certificate so stating and requesting the Collateral DocumentsAgent, as applicable, to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement attached hereto as Exhibit E) in favor of a designated agent or representative for the holders of the First Priority Lien Obligations 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.
Appears in 1 contract
Sources: Indenture (TAMINCO ACQUISITION Corp)
Collateral Agent. (a) The Collateral Agent agrees that it will hold Notwithstanding anything to the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit ofcontrary herein, the Secured Parties, without limiting following provisions shall govern the Collateral Agent’s rights, including powers, obligations and duties under this Section 17.02Security Agreement:
(a) Each of the Holders and the Trustee hereby designates and appoints W▇▇▇▇ Fargo Bank, National Association to act as Collateral Agent under this Security Agreement, and hereby authorizes the Collateral Agent to take such actions on its behalf under the provisions of this Security Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Security Agreement. Notwithstanding any provision to the contrary elsewhere in preservation this Security Agreement, Collateral Agent shall not have any duties or responsibilities, except those expressly set forth in this Security Agreement or any fiduciary relationship with any Holders or Secured Parties or holders of First Lien Obligations or agents of holders of First Lien Obligation, and no implied covenants, functions or responsibilities shall be read into this Security Agreement or otherwise exist against Collateral Agent.
(b) Notwithstanding anything herein to the contrary, 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 Security 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 Security Documents, the Collateral Agent may act through its 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) liable for any action lawfully taken or omitted to be taken by it under or in connection with this Security Agreement (except for its gross negligence or willful misconduct), or (ii) responsible in any manner for any recitals, statements, representations or warranties (other than its own recitals, statements, representations or warranties) made in this Security 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 Security Agreement or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Security Agreement or for any failure of the Grantors or any other Person to perform their obligations hereunder and thereunder. The Collateral Agent shall not be under any obligation to any Person to ascertain or to inquire as to (i) the observance or performance of any of the agreements contained in, or conditions of, this Security Agreement or to inspect the properties, books or records of the Grantors, (ii) whether or not any representation or warranty made by any Person in connection with this Security Agreement is true, (iii) the performance by any Person of its obligations under this Security Agreement or (iv) the breach of or default by any Person of its obligations under this Security Agreement.
(e) The Collateral Agent shall not be 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, or might, constitute a breach of any law or regulation or be otherwise actionable at the suit of any Person; (iii) be under any fiduciary duties or obligations other than those for which express provision is made in this Security Agreement; or (iv) be required to take any action that it believes, based on advice of counsel, is in conflict with any applicable law, this Security Agreement, 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 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 have no responsibility for (i) taking any necessary steps to preserve rights against any Person with respect to any Collateral or (ii) 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 may not act or omit to take any action if such act or omission would constitute gross negligence or willful misconduct and (B) the Collateral Agent may do so and all expenses reasonably incurred in connection therewith shall be part of the Obligations.
(g) The Collateral Agent is authorized and empowered to appoint one shall not be liable or more co-collateral agents as it deems necessary responsible for any loss or appropriate; provideddiminution in the value of any of the Collateral, however, that no collateral agent hereunder shall be personally liable by reason of any the act or omission of any carrier, forwarding agency or other collateral agent hereunderor bailee selected by the Collateral Agent in good faith, except to the extent of the Collateral Agent’s gross negligence or willful misconduct.
(bh) Neither the Trustee nor the The Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will shall not be responsible or liable for for, nor incur any liability with respect to, (i) the existence, genuineness, genuineness or value or protection of any of the Collateral or for the validity, perfection, priority or enforceability of the security interest in any of the Collateral, for 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 legalityother Security Documents, enforceabilityexcept to the extent such action or omission constitutes gross negligence or willful misconduct on the part of the Collateral Agent, effectiveness, (ii) the validity or sufficiency of the Collateral Documentsor any agreement or assignment contained therein, for (iii) the creationvalidity of the title of the Grantors to the Collateral, perfection, priority, sufficiency (iv) insuring the Collateral or protection of any Lien, including not being responsible for (v) the payment of any Taxestaxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(ci) The Collateral Agent shall not have any duties or obligations except those expressly set forth Notwithstanding anything in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in the other Note Documents with reference this Security Agreement 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the Collateral Agent shall not be required to take any action thatcontrary, in its opinion or no event shall the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken officer, director, employee, representative or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer agent of the Collateral Agent by the Company be liable under or in connection with this Security Agreement for indirect, special, incidental, punitive or consequential losses or damages of any Holder. The Collateral Agent will be subject kind whatsoever, including but not limited to such directions as may be given to it by the Trusteelost profits or loss of opportunity, whether or the Administrative Determination Holder(s)not foreseeable, and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only even if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under has been advised of the possibility thereof and regardless of the form of action in which such damages are sought. In no event shall the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, Agent be obligated to take invest any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateralamounts received by it hereunder.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(fj) The Collateral Agent shall be entitled conclusively to rely uponrely, and shall not incur be fully protected in relying, upon any liability for relying uponnote, any noticewriting, resolution, request, direction, certificate, opinion, notice, consent, affidavit, letter, cablegram, telegram, telecopy, email, telex or teletype message, statement, instrument, order or other document or other writing (including any electronic message, Internet or intranet website posting or other distribution) conversation believed by it in good faith to be genuine and correct and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act Persons and/or upon any such statement prior to receipt advice and/or statements of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants and other experts selected by it, the Collateral Agent and need not investigate any fact or matter stated in any such document. Any such statement of legal counsel shall not be liable for full and complete authorization and protection in respect of 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 of the other Security Documents (i) if such action would, in the reasonable opinion of the Collateral Agent (which may be based on the opinion of legal counsel), be contrary to applicable law or any of the Security Documents, (ii) if such action is not provided for in this Security Agreement or any of the other Security Documents, (iii) if, in connection with the taking of any such action hereunder that would constitute an exercise of remedies hereunder or under any of the Indenture it shall not first be indemnified to its 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 Security 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 has received a written notice or a certificate from the Grantors stating that a Default has occurred. The Collateral Agent shall have no obligation whatsoever either prior to or after receiving such notice or certificate to 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 certificate so furnished to it. No provision of this Security Agreement, the Intercreditor Agreement or the Indenture shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under this Security Agreement or the Indenture or the exercise of 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 other Security Documents or the Indenture 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.
(l) 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 may resign as Collateral Agent at any time upon written notice to the Holders, Trustee and the Grantors and may be removed at any time with or without cause by holders of a majority in principal amount of Notes, with any such resignation or removal to become effective only upon the appointment of a successor Collateral Agent under this Section. If the Collateral Agent shall provide notice of its resignation or be removed as Collateral Agent, then a majority in principal amount of Notes shall (and if no such successor shall have been appointed within 45 days of the Collateral Agent’s resignation or removal, the Collateral Agent may) appoint a successor Collateral Agent which successor agent shall, in the case of any appointment by the Collateral Agent, be reasonably acceptable to the majority in principal amount of Notes, and the former Collateral Agent’s rights, powers and duties as Collateral Agent shall be terminated, without any other or further act or deed on the part of such former Collateral Agent (except that the resigning Collateral Agent shall deliver all Collateral then in its possession 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). After any retiring Collateral Agent’s resignation or removal hereunder as Collateral Agent, the provisions of this Security Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it in accordance with while it was Collateral Agent. In the advice of any such counsel, accountants or experts.
(g) At all times when the Trustee event that a successor Collateral Agent is not itself appointed within the time period specified in this Section following the provision of a notice of resignation or removal of the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies or any other Secured Party may petition a court of all documents delivered to competent jurisdiction for the appointment of a successor Collateral Agent pursuant to (at the Collateral Documentsjoint and several expense of the Grantors).
Appears in 1 contract
Sources: Second Lien Pledge and Security Agreement (Cenveo, Inc)
Collateral Agent. (a) 4.1 The Collateral Agent agrees that it will hold Agent’s duties hereunder may be altered, amended, modified or revoked only by a writing signed by the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this IndentureCompany, each Investor and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) 4.2 The Collateral Agent shall not have any be obligated only for the performance of such duties or obligations except those expressly as are specifically set forth in the Note Documents to which it is a party, herein and its no duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein may rely and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, protected in relying or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the Collateral Agent shall not be required to take refraining from acting on any action that, in its opinion or the opinion of its counsel, may expose instrument reasonably believed by the Collateral Agent to liability be genuine and to have been signed or that is contrary to any Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained presented by the Person serving as Collateral Agent proper party or any of its Affiliates in any capacityparties. The Collateral Agent shall not have no liability under and no duty to inquire as to the provisions of any agreement other than this Agreement. The Collateral Agent’s sole responsibility shall be liable for any action taken or not taken by it the safekeeping and disbursement of the Collateral Amount in accordance with the consent or at the request terms of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the this Agreement. Collateral Agent shall believe in good faith have no implied duties or obligations and shall not be necessary, under the circumstances as provided in the Note Documents) charged with knowledge or in the absence notice of its own gross negligence any fact or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly circumstance not specifically set forth herein. The Collateral Agent shall not be deemed not personally liable for any act the Collateral Agent may do or omit to have knowledge do hereunder as the Collateral Agent while acting in good faith and in the absence of gross negligence, fraud or willful misconduct, and any Default act done or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given omitted by the Collateral Agent pursuant to a Responsible Officer the advice of the Collateral Agent’s legal counsel shall be conclusive evidence of such good faith. In no event shall the Collateral Agent by be liable for incidental, indirect, special, consequential or punitive damages (including, but not limited to lost profits), even if the Company Collateral Agent has been advised of the likelihood of such loss or any Holderdamage and regardless of the form of action. The Collateral Agent will shall not be subject obligated to take any legal action or commence any proceeding in connection with the Collateral Amount, any account in which the Collateral Amount is deposited, this Agreement, or to appear in, prosecute or defend any such directions legal action or proceeding. Collateral Agent may consult legal counsel selected by it in the event of any dispute or question as may to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving any party hereto, and shall incur no liability and shall be given to it fully indemnified from any liability whatsoever in acting in accordance with the opinion or instruction of such counsel. Company shall promptly pay, upon demand, the reasonable fees and expenses of any such counsel, provided, however, if such amounts is not paid by the Trustee, or Company within 30 days of the Administrative Determination Holder(s), and prior to date of the Braidwell Disposition DateCollateral Agent’s invoice, the Braidwell Holders, each of the Holders shall be jointly and prior severally liable to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). pay such amounts.
4.3 The Collateral Agent will be subject is hereby expressly authorized to such directions as may be given to it by the Trustee comply with and obey orders, judgments or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture)decrees of any court of law. Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, If the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by obeys or complies with any Person;
(ii) to foreclose upon such order, judgment or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documentsdecree, the Collateral Agent shall not be entitled liable to conclusively rely upon and enforce each and all any of the rightsparties hereto or to any other person, privilegesfirm or corporation by reason of such order, immunitiesjudgment or decree being subsequently reversed, indemnities and benefits modified, annulled, set aside, vacated or found to have been entered without jurisdiction.
4.4 The Collateral Agent shall not be liable in any respect on account of the Trustee under Article 7; provided that identity, authorization or rights of the parties executing or delivering or purporting to execute or deliver the Purchase Agreement or any references documents or papers deposited or called for thereunder in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “the absence of gross negligence”, fraud or willful misconduct.
(f) 4.5 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by employ such experts as the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may deem necessary properly to advise the Collateral Agent in connection with the Collateral Agent’s duties hereunder, may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not advice of such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof)experts, and may act upon pay such experts reasonable compensation, the costs of which compensation shall be borne by the Company.
4.6 The Collateral Agent’s responsibilities as Collateral Agent hereunder shall terminate if the Collateral Agent shall resign by giving written notice to the Company and the Investors. In the event of any such statement prior to receipt of written confirmation thereof resignation, the Investors and the Company shall not incur any liability for relying thereon. The appoint a successor Collateral Agent may consult with legal counsel, independent accountants and the Collateral Agent shall deliver to such successor Collateral Agent any funds and other experts selected documents held by itthe Collateral Agent hereunder or pursuant hereto.
4.7 If the Collateral Agent reasonably requires other or further instruments in connection with this Agreement or obligations in respect hereto, the necessary parties hereto shall join in furnishing such instruments.
4.8 It is understood and agreed that should any dispute arise with respect to the delivery and/or ownership or right of possession of the funds held by the Collateral Agent hereunder, or if otherwise permitted or required under this Agreement, the Collateral Agent is authorized and directed in the Collateral Agent’s sole discretion (1) to retain in the Collateral Agent’s possession without liability to anyone all or any part of said funds until such dispute shall not have been settled either by mutual written agreement of the parties concerned or by a final order, decree or judgment of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but the Collateral Agent shall be liable for under no duty whatsoever to institute or defend any action taken such proceedings or not taken (2) to deliver the funds held by it the Collateral Agent hereunder to a state or Federal court having competent subject matter jurisdiction and located in the City of New York in accordance with the advice of any such counsel, accountants or expertsapplicable procedure therefor.
(g) At all times when the Trustee is not itself the Collateral Agent, the 4.9 The Company will deliver and each Investor agree jointly and severally to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to indemnify and hold harmless the Collateral Agent and copies its partners, employees, agents and representatives from any and all claims, liabilities, costs or expenses in any way arising from or relating to the duties or performance of all documents delivered to the Collateral Agent pursuant hereunder or the transactions contemplated hereby or by the Purchase Agreement other than any such claim, liability, cost or expense to the extent the same shall have been determined by final, unappealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, fraud or willful misconduct of the Collateral DocumentsAgent. Notwithstanding the foregoing, as between the Company and the Investors, the Company shall bear the cost of the Collateral Agent’s fees and expenses for serving as Collateral Agent hereunder.
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Collateral Agent. (a) The Collateral Each Bank and the Administrative Agent ---------------- Agent hereby irrevocably appoints and authorizes, and hereby agrees that it will hold the security interests require any transferee of any of its interest in its Facility B Loans and in its Facility B Notes irrevocably to appoint and authorize, the Collateral created Agent to take such actions as its agent on its behalf and to exercise such powers under the Collateral Security Documents to which it is a party as contemplated are delegated by this Indenture, and any and all proceeds the terms thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateraltogether with such powers as are reasonably incidental thereto. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral Agent nor any of their respective its directors, 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not omitted to be taken by it with the consent or at the request them under any of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) Security Documents or in the absence of connection therewith, except for its or their own gross negligence or willful misconduct as determined by the a final and non-appealable judgment judicial order of a court of competent jurisdiction, in connection with . The Collateral Agent may execute any of its duties expressly set forth hereinunder the Loan Documents by or through agents or attorneys selected by it using reasonable care and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Collateral Agent shall not be deemed not responsible to have knowledge any Bank for the negligence or misconduct of any Default agents or Event of Default unless and until written notice thereof (stating that attorneys selected by it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holderwith reasonable care. The Collateral Agent will be subject to such directions as may be given to it by the Trusteetreat each Bank, or the Person designated in the last notice filed with the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield HoldersAgent under Section 9.3 of this Agreement, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or holder of all of the Liensinterests of such Bank in its Facility B Loans and in its Facility B Notes until written notice of transfer, Collateral Documents signed by such Bank (or Collateral.
(dthe Person designated in the last notice filed with the Administrative Agent) The Collateral Agent will be accountable only for amounts that it actually receives as a result of and by the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references Person designated in such Article 7 written notice of transfer, in form and substance satisfactory to “Trustee” the Administrative Agent, shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by filed with the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereonAdministrative Agent. The Collateral Agent may consult with legal counsel, independent accountants and other experts counsel selected by it, it and shall not be liable for any action taken or not taken suffered by it in good faith in reliance thereon. The Collateral Agent shall not be under any duty to examine, inquire into, or pass upon the validity, effectiveness, or genuineness of any Security Document or other document, or communication furnished pursuant thereto or in connection therewith, and the Collateral Agent shall be entitled to assume that they are valid, effective, and genuine, have been signed or sent by the proper parties, and are what they purport to be. The Collateral Agent shall be entitled to use its discretion with respect to exercising or refraining from exercising any rights which may be vested in it by, and with respect to taking or refraining from taking any action or actions which it may be able to take under or in respect of, any Security Document, unless the Collateral Agent shall have been instructed by the Required Lenders to exercise or refrain from exercising such rights or to take or refrain from taking such action, provided that the Collateral Agent shall not exercise any rights under any Security Document without the request of the Required Lenders unless time is of the essence, in which case, such action can be taken. The Collateral Agent shall incur no liability under or in respect of any Security Document with respect to anything which it may do or refrain from doing in the reasonable exercise of its judgment or which may seem to it to be necessary or desirable in the circumstances, except for its gross negligence or willful misconduct as determined by a final, non-appealable judicial order of a court of competent jurisdiction. The Collateral Agent shall not be liable to the Banks or to any Bank in acting or refraining from acting under any Security Document in accordance with the advice instructions of the Required Lenders, and any action taken or failure to act pursuant to such counsel, accountants instructions shall be binding on all Banks. The Collateral Agent shall not be obligated to take any action which is contrary to law or experts.
which would in its reasonable opinion subject it to liability. All indemnity provisions herein that pertain to the Administrative Agent shall apply equally to the Collateral Agent. Each Bank and the Administrative Agent hereby agree that the Obligations are to be secured pari passu with all "Obligations"@ ---- ----- under the ATS Facility A Loan Agreement and that all Collateral now or hereafter delivered as security for the Obligations shall be held by the Collateral Agent (g) At all times when the Trustee is not itself or delivered to the Collateral Agent, if received by any Bank) in accordance with the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Security Documents.
Appears in 1 contract
Collateral Agent. (a) The Trustee shall initially act as Collateral Agent agrees that it will hold the security interests and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Collateral created under Security Documents or the Collateral Documents to which it is a party as contemplated by this IndentureIntercreditor Agreement, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor neither the Collateral Agent nor any of their its respective officers, directors, employees, attorneys employees or agents will shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose collect or realize upon or otherwise enforce any of the Liens Collateral or Collateral Documents or for any delay in doing so. Neither the Trustee nor the Collateral Agent nor so or shall be under any of their respective officers, directors, employees, attorneys obligation to sell or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing otherwise dispose of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at upon the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon Person or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to the Collateral or any or all of the Liens, Collateral Documents or Collateral.
(d) part thereof. The Collateral Agent will shall be accountable only for amounts that it actually receives as a result of the enforcement exercise of such powers, and neither the Liens Collateral Agent nor any of its officers, directors, employees or Collateral Documentsagents shall be responsible for any act or failure to act hereunder, except for its own willful misconduct, gross negligence or bad faith.
(eb) In acting The Trustee, as Collateral Agent hereunder Agent, is authorized and directed to (i) enter into the Security Documents, (ii) enter into the Intercreditor Agreement, (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreement and (iv) perform and observe its obligations under the Security Documents and the Intercreditor Agreement.
(c) If the Issuers (i) Incur First-Priority Lien Obligations at any time when no intercreditor agreement 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, and (ii) delivers to the Collateral DocumentsAgent an Officers’ Certificate so stating and requesting the Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement in effect on the Issue Date) in favor of a designated agent or representative for the holders of the First-Priority Lien Obligations so Incurred, the Collateral Agent shall be entitled to conclusively rely upon (and enforce each is hereby authorized and all of directed to) enter into such intercreditor agreement, bind the rights, privileges, immunities, indemnities and benefits of Holders on the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements terms set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone therein and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), perform and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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 expertsobserve its obligations thereunder.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.
Appears in 1 contract
Collateral Agent. (a) The Issuer and each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent agrees that it will hold the security interests in the Collateral created as its agent under this Indenture, the Collateral Documents and each Intercreditor Agreement, and the Issuer and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to which it is a party as contemplated by take such action on its behalf under the provisions of this Indenture, the Collateral Documents and any each Intercreditor Agreement, and all proceeds thereof, for to exercise such powers and perform such duties as are expressly delegated to the benefit ofCollateral Agent by the terms of this Indenture, the Secured PartiesCollateral Documents and each Intercreditor Agreement, without limiting and consents and agrees to the terms of each Intercreditor Agreement and each Collateral Agent’s rightsDocument, including under this Section 17.02as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to act time in preservation of the security interest in the Collateralaccordance with their respective terms. The Collateral Agent is authorized and empowered agrees to appoint one or more co-collateral agents act as it deems necessary or appropriate; provided, however, such on the express conditions contained in this Section 12.7. Each Holder agrees that no collateral agent hereunder shall be personally liable any action taken by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral Agent nor any in accordance with the provisions of their respective officersthis Indenture, 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 each Intercreditor Agreement and the Collateral Documents, for and the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor exercise by the Collateral Agent nor of any of their respective officersrights 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 Indenture, directorsthe Collateral Documents and each Intercreditor Agreement, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection duties of the Collateral Agent’s Lien Agent shall be ministerial and administrative in nature, and the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations responsibilities, except those expressly set forth herein and in the Note Collateral Documents and each Intercreditor Agreement, to which it 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 Trustee, any Holder or any Grantor, and its duties hereunder no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be administrative in natureread into this Indenture, the Collateral Documents and each Intercreditor Agreement, or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoingforegoing sentence, the use of the term “agent” herein and in the other Note Documents this 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 and insteadapplicable 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, .
(2b) the The Collateral Agent shall not have may perform any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereofof its duties under this Indenture, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition DateDocuments, the Braidwell HoldersPari Passu Intercreditor Agreement and any Acceptable Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and prior to the Deerfield Disposition Daterespective officers, the Deerfield Holders directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates
(or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documentsa “ Related Person”); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure entitled to discloseadvice 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 information relating to any Note Party advice or any of its Affiliates that is communicated to or obtained opinion given by the Person serving as Collateral Agent or any of its Affiliates in any capacitylegal counsel. The Collateral Agent shall not be liable responsible for the negligence or misconduct of any action taken receiver, agent, employee, attorney-in-fact or not taken by Related Person that it selects as long as such selection was made in good faith and with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders due care.
(or such other number or percentage of the Holders as shall be necessary, or as the c) The Collateral Agent shall believe in good faith be entitled to rely, and shall be necessaryfully protected in relying, under the circumstances as provided in the Note Documentsupon 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 in the absence of its own gross negligence or willful misconduct as determined made by the final proper Person or Persons, and non-appealable judgment upon advice and statements of a court of competent jurisdictionlegal 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 connection with its duties expressly set forth hereinany 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, the Pari Passu Intercreditor Agreement or any Acceptable 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 Collateral Document, the Pari Passu Intercreditor Agreement or any Acceptable 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.
(d) [Reserved]
(e) The Collateral Agent shall not be deemed not to have knowledge or notice of the occurrence of any Default or Event of Default Default, unless and until a Trust Officer of the Collateral Agent shall have received written notice thereof (from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that it such notice is a “notice of default.” and describing The Collateral Agent shall take such action with respect to such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions Default as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it requested by the Trustee in accordance with Article VI or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided Holders of a majority in Section 17.03, to take any other action whatsoever with regard to any or all aggregate principal amount of the Liens, Collateral Documents or Collateral.
Notes (d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled subject to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”this Section 12.7).
(f) The Collateral Agent may resign at any time by 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 resigns under this Indenture, the Issuer 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 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 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 notice of resignation) the Collateral Agent shall be entitled to rely uponpetition 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” shall mean such successor collateral agent, and the retiring Collateral Agent’s appointment, powers and duties as the Collateral Agent shall be terminated. If the Collateral Agent consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor Collateral Agent. After the retiring Collateral Agent’s resignation hereunder, the provisions of this Section 12.7 (and Section 7.7 hereof) shall continue to inure to its benefit and the retiring Collateral Agent shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it reason of such resignation be deemed to be genuine and released from liability as to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants and other experts selected by it, and shall not be liable for any action actions taken or not omitted to be taken by it in accordance with the advice of any such counsel, accountants or experts.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to while it was the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documentsunder this Indenture.
Appears in 1 contract
Sources: Indenture (MICROSTRATEGY Inc)
Collateral Agent. (a) The 14.1 By their execution of the Omnibus Signature Page to the Purchase Agreement and this Agreement, each of the Noteholders have agreed to appoint a Collateral Agent agrees that it will hold the security interests in upon an Event of Default and hereby authorize the Collateral created under the Collateral Documents Agent to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, exercise for the benefit ofof the Noteholders all rights, powers and remedies provided to it under or pursuant to this Agreement, including all rights, powers and remedies upon an Event of Default, subject always to the terms, conditions, limitations and restrictions provided in this Agreement. Except with respect to those matters as to which the Collateral Agent is expressly required to act under the terms of this Article XIV, the Secured PartiesCollateral Agent may act or refrain from acting with the written consent of the Requisite Holders, without limiting which Requisite Holders shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder such direction shall not be personally liable in conflict with any rule of law or expose the Collateral Agent to personal liability, and the Collateral Agent may take any action deemed proper by reason the Collateral Agent, in its discretion, which is not inconsistent with such direction or the terms of any act or omission of any other collateral agent hereunderthis Agreement.
(b) 14.2 The Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement. Neither the Trustee nor the Collateral Agent nor any of their respective its partners, members, shareholders, officers, directors, employees, attorneys employees 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken omitted by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or as such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) Agreement or hereunder or in connection herewith or therewith, be responsible for the absence consequence of any oversight or error of judgment or answerable for any loss, unless caused by its own or their gross negligence or willful misconduct as determined by the a final and non-appealable judgment (not subject to further appeal) of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge duties of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon mechanical and enforce each and all of administrative in nature; the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) The Collateral Agent shall be entitled to rely upon, not have by reason of the Agreement or any other transaction document a fiduciary relationship in respect of any Grantor or any Noteholder; and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth nothing in the Note Documents for being the signatoryAgreement or any other transaction document, sender expressed or authenticator thereof). The Collateral Agent also may rely implied, is intended to or shall be so construed as to impose upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent any obligations in respect of the Agreement or any other transaction document except as expressly set forth herein and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documentstherein.
Appears in 1 contract
Sources: Security Agreement (BeesFree, Inc.)
Collateral Agent. (a) The By accepting a Note, each holder will be deemed to have irrevocably appointed the Collateral Agent agrees that it will hold to act as its agent under the security interests in Security Documents and the Intercreditor Agreements and to have irrevocably authorized and directed the Collateral created Agent to (i) perform the duties and exercise the rights, powers and discretions that are specifically given to it under the Collateral Documents Security Documents, the Intercreditor Agreements or other documents to which it is a party as contemplated party, together with any other incidental rights, powers and discretions; and (ii) execute each document expressed to be executed by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation Agent on its behalf. Each of the security interest in holders hereby exempts the Collateral. Collateral Agent from any restrictions on representing several persons and self-dealing under any applicable law to the extent legally possible for such holder.
(b) The Collateral Agent is authorized and empowered to appoint one or more subagents or co-collateral agents as it deems necessary or appropriate, including without limitation the Term Loan Collateral Agent.
(c) The Collateral Agent shall have all the rights and protection provided in the Security Documents as well as the rights and protections afforded to it hereunder; provided, however, that no collateral agent hereunder the Issuer shall be personally liable not reimburse any expense or indemnify against any loss, liability or expense incurred by reason the Collateral Agent through the Collateral Agent’s own willful misconduct or gross negligence, as determined by a final order of any act or omission a court of any other collateral agent hereundercompetent jurisdiction.
(bd) Neither None of the Trustee nor Trustee, the Collateral Agent nor 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, effectiveness or sufficiency of the Collateral Security Documents, for the creation, perfection, continuation of perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges Lien securing the Notes or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect except to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have extent any duties or obligations except those expressly set forth in the Note Documents to which it possessory collateral is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in the other Note Documents with reference delivered to the Collateral Agent is not intended for perfection purposes.
(e) Subject to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law the Security Documents and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powersIntercreditor Agreements, except discretionary rights and powers that are expressly contemplated as directed by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (Trustee as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, holders acknowledge that the Collateral Agent will not be obligated:
(i) A. to act upon directions purported to be delivered to it by any other Person;
(ii) B. to foreclose upon or otherwise enforce any Lien created under securing the Collateral DocumentsNotes; or
(iii) except as expressly provided in Section 17.03, C. to take any other action whatsoever with regard to any or all of Liens securing the LiensNotes, Collateral the Security Documents or the Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(ef) In acting as Collateral Agent hereunder and under the Collateral DocumentsAgent, co-collateral agent or sub-collateral agent, the Collateral Agent shall be entitled to conclusively Agent, each co-collateral agent and each sub-collateral agent may rely upon and enforce each and all of the rights, privilegespowers, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”VII hereof.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.
Appears in 1 contract
Collateral Agent. (a) The Trustee shall act as Collateral Agent agrees that it will hold the security interests and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Collateral created under the Collateral Documents to which it is a party as contemplated by this IndentureSecurity Documents, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor neither the Collateral Agent nor any of their its respective officers, directors, employees, attorneys employees or agents will shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose collect or realize upon or otherwise enforce any of the Liens Collateral or Collateral Documents or for any delay in doing so. Neither the Trustee nor the Collateral Agent nor so or shall be under any of their respective officers, directors, employees, attorneys obligation to sell or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing otherwise dispose of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at upon the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon Person or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to the Collateral or any or all of the Liens, Collateral Documents or Collateral.
(d) part thereof. The Collateral Agent will shall be accountable only for amounts that it actually receives as a result of the enforcement exercise of such powers, and neither the Liens 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, negligence or bad faith.
(b) The Trustee, as Collateral Agent, is authorized and directed to (i) enter into the Security Documents, (ii) bind the Holders on the terms as set forth in the Security Documents and (iii) perform and observe its obligations under the Security Documents.
(ec) In acting as If the Company (i) incurs Indebtedness constituting First Lien Obligations at any time when no Intercreditor Agreement is in effect or at any time when Indebtedness constituting First Lien Obligations entitled to the benefit of an existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Collateral Agent hereunder an Officer's Certificate so stating and under requesting the Collateral DocumentsAgent 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 be entitled (and is hereby authorized and directed to) (A) enter into such documents and agreements (including amendments or supplements to conclusively rely upon and enforce each and all the Intercreditor Agreement) as the Company or the new Credit Agent shall request in order to provide to the new Credit Agent the rights of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) The Collateral Credit 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated contemplated by the proper Person Intercreditor Agreement and (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(gii) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to Credit Agent the Collateral perfected by possession together with any necessary endorsements (or otherwise allow such Credit Agent and copies to obtain control of all documents delivered to the Collateral Agent pursuant to the Collateral Documentssuch Collateral).
Appears in 1 contract
Sources: Indenture (National Coal Corp)
Collateral Agent. (a) The By execution and delivery of this Agreement or by acceptance of this Agreement after the date hereof, each Purchaser hereby appoints (i) the Collateral Agent agrees that it will to hold the security interests Liens granted in this Agreement and to exercise all of the rights and powers granted to the Collateral created under the Collateral Documents to which it is a party as contemplated by Agent in this Indenture, and any Agreement and all proceeds thereofother rights which are reasonably incidental thereto, in each case for the benefit ofof itself and the Purchasers, the Secured Parties, without limiting and (ii) the Collateral Agent’s rights, including under this Section 17.02, to act in preservation Agent as its agent for the purposes of the security creating and perfecting its interest in the Collateral. The Collateral Agent is authorized hereby accepts such appointment by the Purchasers. All items of Collateral and empowered any interest therein to appoint one be delivered to or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder held by the Collateral Agent pursuant to this Agreement shall be personally liable held by reason the Collateral Agent, for the benefit of itself and the Purchasers. The Purchasers acknowledge and agree that any act right, remedy, privilege or omission power under this Agreement shall be exercised by the Collateral Agent only. The Grantors may conclusively and absolutely rely, without inquiry, upon any action of any other collateral agent hereunderthe Collateral Agent in all matters referred to in this Agreement and the Purchasers confirm all that the Collateral Agent shall do or cause to be done by virtue of its appointment as Collateral Agent.
(b) The Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement. Neither the Trustee nor the Collateral Agent nor any of their respective its officers, directors, employees, attorneys employees or agents will shall be responsible or liable for any action taken or omitted by it as such hereunder to the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency maximum extent permitted by law. The duties of the Collateral DocumentsAgent shall be mechanical and administrative in nature. The Collateral Agent shall not have, for the creationby reason of this Agreement or otherwise, perfection, priority, sufficiency or protection a fiduciary relationship in respect of any Lien, including not being responsible for payment of any Taxes, charges the Purchasers; and nothing is intended to or assessments shall be so construed as to impose upon the Collateral or otherwise as to the maintenance of the Collateral, or for Agent any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay obligations in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection respect of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Officeexcept as expressly set forth herein.
(c) The Collateral Agent shall not have receive any duties or obligations except those expressly set forth compensation for its services rendered hereunder, but shall be reimbursed by the Purchasers for all of its expenses incurred in the Note Documents to which it is a party, and performing its duties hereunder hereunder. To the extent the Grantors fail to make any payments to the Collateral Agent pursuant to Section 21 of this Agreement, the Purchasers agree that such payments shall be administrative in naturesatisfied from the proceeds of liquidation of the Collateral prior to distributions to be made to the Purchasers pursuant to this Section. If, after such application, amounts owed to the Collateral Agent pursuant to Section 21 of this Agreement remain unpaid, each Purchaser hereby agrees to reimburse the Collateral Agent for such unpaid amounts evenly. Without limiting the generality of the foregoing, the Purchasers agree to reimburse the Collateral Agent promptly upon demand, in an equal amount, for any out-of-pocket expenses, including, without limitation, reasonable outside counsel fees and reasonably allocated in-house counsel expenses incurred by the Collateral Agent in connection with the performance of this Agreement.
(1d) Independently and without reliance upon the Collateral Agent, each Purchaser, to the extent it deems appropriate, has made and shall continue to make (a) its own independent investigation of the financial condition and affairs of each of the Grantors, and (b) its own appraisal of the creditworthiness of each of the Grantors, and the Collateral Agent shall have no duty or responsibility, either initially or on a continuing basis, to provide any Purchaser with any credit or other information with respect thereto. The Collateral Agent shall not be responsible to any Purchaser for any recitals, statements, information, representations or warranties herein or in any document, certificate or other writing delivered in connection herewith or for the execution, effectiveness, genuineness, validity, enforceability, perfection, collectability, priority or sufficiency of this Agreement or the Collateral or the financial condition of any of the Grantors or be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement.
(e) Prior to receipt of a written notice from a Purchaser that an Event of Default has occurred ("Notice of Default"), the Collateral Agent shall have the power, but not the obligation, to take such actions as the Collateral Agent in its discretion deems necessary or desirable to perfect, preserve, or otherwise protect the security interest and Liens in the Collateral or any part thereof, provided that the Collateral shall not take any such action if objected to by any Purchaser. After a Notice of Default has been received by the Collateral Agent, Collateral Agent shall only take such actions under this Agreement as may be unanimously directed by the Purchasers or by a final order, decree or judgment of a court of competent jurisdiction and from which no appeal has been taken and as to which the time the right to appeal has expired. Except as set forth in clause (i) of this Section, the Collateral Agent shall be required to act or not act upon the unanimous instructions of the Purchasers, and those instructions shall be binding upon the Collateral Agent and both of the Purchasers.
(f) All proceeds of the Collateral shall be applied as follows:
(i) first, to the payment of all fees and expenses (including, without limitation, all fees, taxes, attorneys' fees and legal expenses) incurred by the Collateral Agent in connection with retaking, holding, collecting, or liquidating the Collateral, until paid in full;
(ii) second, to payment of all fees, expenses, indemnities and other amounts owed to the Collateral Agent under Sections 21 or 30(c) or otherwise under this Agreement, until paid in full;
(iii) third, to payment of that portion of the Obligations constituting fees, expenses and indemnities owed to the Purchasers, ratably among the Purchasers in proportion to the respective amounts described in this clause third payable to them;
(iv) fourth, to payment of the other Obligations owed to the Purchasers, ratably among the Purchasers in proportion to the respective amounts described in this clause fourth payable to them, until paid in full; and
(v) last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Grantors or as otherwise required by law. In the event any proceeds of Collateral are deposited with or under the control of a Purchaser or if any Purchaser receives more of the proceeds of Collateral than it is entitled to under this clause (f), such Purchaser shall pay over such proceeds to the Collateral Agent for application to the Obligations as provided in this clause (f).
(g) The Collateral Agent may at any time, and upon the request of all the Purchasers shall, give notice of its resignation to the Purchasers and the Grantors. Upon receipt of any such notice of resignation, the Purchasers shall have the right to appoint a successor. If no such successor shall have been so appointed by the Purchasers and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Collateral Agent shall be discharged from its duties and obligations hereunder (except that in the case of any collateral security held by the Collateral Agent on behalf of the Purchasers, the retiring Collateral Agent shall continue to hold such collateral security until such time as a successor Collateral Agent is appointed) and (b) all payments, communications and determinations provided to be made by, to or through the Collateral Agent shall instead be made by or to each Purchaser directly, until such time as the Purchasers appoint a successor Collateral Agent as provided for above in this Section. Upon the acceptance of a successor's appointment as Collateral Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Collateral Agent, and the retiring Collateral Agent shall be discharged from all of its duties and obligations hereunder (if not already discharged therefrom as provided above in this Section). After the retiring Collateral Agent's resignation hereunder, the provisions of this Section shall continue in effect for the benefit of such retiring Collateral Agent in respect of any actions taken or omitted to be taken by it while it was acting as Collateral Agent.
(h) The Collateral Agent shall not be liable for any action taken or omitted by it at the request of all the Purchasers.
(i) Notwithstanding anything in this Agreement or any other agreement or document, express or implied, it is agreed that (i) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in the other Note Documents with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or expressii) obligations arising under agency doctrine of any Applicable Law and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documentsapplicable law; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, counsel or independent public accountants and other experts selected by it, it and shall not be liable for entitled to fully rely upon any opinion of such counsel or accountant in connection with any action taken or not omitted to be taken by it the Collateral Agent in accordance with the advice of any such counsel, accountants or experts; and (iv) the Collateral Agent may perform any and all of its duties and exercise its rights and powers hereunder by or through any one or more sub-agents appointed by the Collateral Agent.
(gj) At all times when the Trustee is not itself the Collateral AgentThe Purchasers hereby agree amongst themselves that, the Company will deliver to the Trustee, which shall deliver extent the Purchasers disagree on any direction provided or to the Holders of Notes, copies of all Collateral Documents delivered be provided to the Collateral Agent with respect to this Agreement, the Purchasers shall meet and copies seek in good faith to resolve any disagreements.
(k) The provisions of all documents delivered to this Section are solely for the benefit of the Collateral Agent pursuant to and the Collateral DocumentsPurchasers, and the Grantors shall not have rights as third party beneficiaries of any of such provisions.
Appears in 1 contract
Collateral Agent. (a) The Collateral Agent agrees that it will hold Notwithstanding anything else to the security interests contrary herein, whenever reference is made in the Collateral created under this Indenture or the Collateral Documents (including the Intercreditor Agreement or any Other Intercreditor Agreement) to which it is a party as contemplated by this Indentureany discretionary action by, and any and all proceeds thereofconsent, for the benefit 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 Secured PartiesCollateral Agent or to any election, without limiting 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’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative understood that in nature. Without limiting the generality of the foregoing, (1) all cases the Collateral Agent shall not be subject fully justified in failing or refusing to take any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent action if it shall not have any duty to take any discretionary action received written instruction, advice or exercise any discretionary powersconcurrence from, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereofas applicable, the Collateral Agent is required to exercise as directed in writing by Controlling Party or the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders Applicable Party (or Holders representing such number or percentage of outstanding aggregate principal of the Holders Notes as shall be necessaryexpressly provided for herein or in any other Collateral Document) in respect of such action and, if it so requests, it shall first be indemnified to its satisfaction 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 have no liability for any failure or delay in taking any actions contemplated above as a result of a failure or delay on the part of the Controlling Party, the Applicable Party or such Holders, as applicable, to provide such instruction, advice or concurrence. This provision is intended solely for the benefit of the Collateral Agent shall believe in good faith and its successors and permitted assigns and is not intended to be necessaryand will not entitle the other parties hereto to any defense, under claim or counterclaim, or confer any rights or benefits on any party hereto. Subject to the circumstances as provided in foregoing (and the Note Documents); provided that other provisions of this Section 12.15) and the terms of the Collateral Agent shall not be required to take Documents and any action that, in its opinion or the opinion other applicable provisions of its counsel, may expose the Collateral Agent to liability or that is contrary to any Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a partythis Indenture, the Collateral Agent shall not have any duty take such action with respect to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof as may be requested by the Controlling Party.
(stating that it is a “notice of default” and describing such Default or Event of Defaultb) is given to a Responsible Officer of the The Collateral Agent may resign at any time by notice to the Company or any HolderTrustee and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. The Collateral Agent will be subject to such directions as may be given to it removed by the TrusteeCompany at any time, or the Administrative Determination Holder(s), and prior upon thirty days written notice to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture)Collateral Agent. The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, If the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon resigns or otherwise enforce any Lien created is removed under this Indenture, the Company shall appoint a successor collateral agent. If no successor collateral agent is appointed and has accepted such appointment within 30 days after the Collateral Documents; or
Agent gives notice of resignation or is removed, the retiring Collateral Agent may (iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all at the expense of the LiensCompany), Collateral Documents or Collateral.
(d) The at its option, appoint a successor Collateral Agent will be accountable only or petition a court of competent jurisdiction for amounts that it actually receives the appointment of a successor. Upon the acceptance of its appointment as a result successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the enforcement of retiring Collateral Agent, and the Liens term “Collateral Agent” shall mean such successor collateral agent, and the retiring or removed Collateral Documents.
(e) In acting Agent’s appointment, powers and duties as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of terminated. After the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “retiring Collateral Agent” ’s resignation or removal hereunder, the provisions of this Section 12.15 (and any references Section 7.06) shall continue to “negligence” shall be references inure to “gross negligence”.
(f) The its benefit and the retiring or removed Collateral Agent shall not by reason of such resignation or removal 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it deemed to be genuine and released from liability as to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants and other experts selected by it, and shall not be liable for any action actions taken or not omitted to be taken by it in accordance with the advice of any such counsel, accountants or experts.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to while it was the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documentsunder this Indenture.
Appears in 1 contract
Sources: Indenture (American Airlines, Inc.)
Collateral Agent. (a) The Trustee and the Company hereby acknowledge and agree that the Collateral Agent agrees that it will hold the security interests in holds the Collateral created under in trust for the Collateral benefit of the Trustee and the Holders, in each case pursuant to the terms of the Security Documents and the Intercreditor Agreement. Each Holder, by accepting a Note, consents and agrees to which it is a party as contemplated by the terms of this Indenture, the Security Documents and any and all proceeds thereofthe Intercreditor Agreement (including, for the benefit ofwithout limitation, the Secured Parties, without limiting provisions providing for foreclosure and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms and authorizes and directs the Collateral Agent to enter into the Security Documents and the Intercreditor Agreement and to perform its obligations and exercise its rights thereunder in accordance therewith. The Company shall deliver to the Trustee (if it is not itself then the Collateral Agent’s rights) copies of all documents delivered to the Collateral Agent pursuant to the Security Documents, including under and will do or cause to be done all such acts and things as may be required by this Section 17.02, 12.12 to act in preservation of assure and confirm to the Trustee and the Collateral Agent the security interest in the Collateral. The Collateral Agent is authorized contemplated hereby, by the Security Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and empowered benefit of this Indenture and of the Notes secured hereby, according to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunderthe intent and purposes herein expressed.
(b) Neither Except as otherwise explicitly provided herein or in the Trustee nor Security Documents, neither the Collateral Agent nor any of their its respective officers, directors, employees, attorneys employees or agents will shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose collect or realize upon or otherwise enforce any of the Liens Collateral or Collateral Documents or for any delay in doing so. Neither the Trustee nor the Collateral Agent nor so or shall be under any of their respective officers, directors, employees, attorneys obligation to sell or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing otherwise dispose of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at upon the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon Person or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to the Collateral or any or all of the Liens, Collateral Documents or Collateral.
(d) part thereof. The Collateral Agent will shall be accountable only for amounts that it actually receives as a result of the enforcement 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.
(c) The Collateral Agent is authorized and directed by the Company to (i) enter into the Security Documents and the Intercreditor Agreement, (ii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreement and (iii) perform and observe its obligations under the Security Documents and the Intercreditor Agreement, including hiring experts, consultants, agents and attorneys reasonably necessary to perform its obligations thereto.
(d) The Company shall pay to the Collateral Agent from time to time such compensation for its services rendered under the Security Documents as agreed in writing. The Company shall reimburse the Collateral Agent upon request for all reasonable out-of-pocket disbursements, expenses and advances (including reasonable fees and expenses of counsel) incurred or made in connection with the performance of its duties under the Security Documents and the Intercreditor Agreement. Such expenses shall include the reasonable compensation, reasonable out-of-pocket disbursements and reasonable expenses of the Liens or Collateral DocumentsAgent’s consultants, agents and counsel.
(e) In acting as Collateral Agent hereunder The Company shall indemnify and under the Collateral Documents, hold harmless the Collateral Agent shall be entitled to conclusively rely upon and enforce each its agents, employees, officers, directors and shareholders (collectively, the “Collateral Agent Indemnified Parties”) against (i) any and all claims, expenses, loss or liability incurred by it arising out of or in connection with the rights, privileges, immunities, indemnities administration of its duties under the Security Documents and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” Intercreditor Agreement and any references to “negligence” shall be references to “gross negligence”.
(fii) Environmental Damages. The Collateral Agent shall notify the Company promptly of any claim asserted against it for which any Collateral Agent Indemnified Party may seek indemnity. The Company shall defend the claim with counsel designated by the Company, who may be entitled outside counsel to rely uponthe Company, but shall in all events be reasonably satisfactory to the Collateral Agent Indemnified Party, and the Collateral Agent Indemnified Party shall not incur cooperate in the defense. The Company shall keep the Collateral Agent Indemnified Party advised of all material events with respect to any liability for relying uponclaim, shall obtain the prior written approval (which approval may be withheld or delayed in the Collateral Agent Indemnified Party’s sole discretion) of the Company before entering into any noticesettlement, request, certificate, consent, statement, instrument, document adjustment or compromise of such claim involving injunctive or other writing (including equitable relief being asserted against the Collateral Agent Indemnified Party and will not, without the prior written consent of each Collateral Agent Indemnified Party, settle or compromise or consent to the entry of any electronic message, Internet judgment in any pending or intranet website posting or other distribution) believed by it to threatened action in respect of which indemnification may be genuine and to have been signed, sent or otherwise authenticated by the proper Person sought hereunder (whether or not any such Person in fact meets Collateral Agent Indemnified Party is a party to such action), unless such settlement, compromise or consent by its terms obligates the requirements set forth in the Note Documents for being the signatoryCompany to satisfy such settlement, sender compromise or authenticator thereof)consent and includes an unconditional release of all such Collateral Agent Indemnified Parties from all liability arising out of such claim. The Collateral Agent also Indemnified Party may rely upon any statement made to it orally or by telephone have separate counsel and believed by it to have been made by the proper Person (whether or not such Person in fact meets Company shall pay the requirements set forth in the Note Documents for being the maker thereof), reasonable fees and may act upon any such statement prior to receipt expenses of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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; provided, accountants or experts.
(g) At all times when the Trustee is not itself the Collateral Agent, that the Company will deliver not be required to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to pay such fees and expenses if it assumes the Collateral Agent Indemnified Party’s defense and copies there is no conflict of all documents delivered to interest between the Company and the Collateral Agent pursuant to Indemnified Party in connection with such defense. The Company need not pay for any settlement made without its written consent, which consent may not be unreasonably withheld. The Company need not reimburse any expense or indemnify against any loss or liability incurred by the Collateral DocumentsAgent Indemnified Party through such Collateral Agent Indemnified Party’s own willful misconduct, negligence or bad faith.
Appears in 1 contract
Sources: Indenture (Webcraft LLC)
Collateral Agent. (a) The [·] shall initially act as Collateral Agent agrees that it will hold the security interests and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Collateral created under Security Documents or the Collateral Documents to which it is a party as contemplated by this IndentureIntercreditor Agreements, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor neither the Collateral Agent nor any of their respective its officers, directors, employees, attorneys employees or agents will shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose collect or realize upon or otherwise enforce any of the Liens Notes Collateral or Collateral Documents or for any delay in doing soso or shall be under any 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 Notes Collateral or any part thereof. Neither Notwithstanding any provision to the Trustee nor contrary contained elsewhere in this Indenture, the Intercreditor Agreements or the Security Documents, the duties of the Collateral Agent nor any of their respective officersshall be ministerial and administrative in nature, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain and the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations responsibilities, except those expressly set forth in this Indenture, in the Note Intercreditor Agreements and in the Security Documents to which it 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 Trustee, any Holder, the Issuer or any Guarantor, and its duties hereunder no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be administrative in natureread into this Indenture, the Intercreditor Agreements or the Security Documents or shall otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoingforegoing sentence, the use of the term “agent” herein or “Agent” in this Indenture, the Intercreditor Agreements and in the other Note 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 and insteadapplicable 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement 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 or gross negligence (as determined by a final, non-appealable order of a court of competent jurisdiction).
(b) The Collateral Agent is authorized and directed to (i) enter into the Security Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the 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 Liens 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 DocumentsAgent in connection with any action required or permitted by this Indenture, the Security Documents or the Intercreditor Agreements.
(e) In acting as The Collateral Agent hereunder and under 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, a Holder 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 or the Holders of a majority in aggregate principal amount of the Securities subject to this Article 11.
(f) No provision of this Indenture or any Security Document shall require the Collateral Agent (or the Trustee) 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 Holders (or the 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.
(g) The Collateral Agent shall not be responsible in any manner to any of the Trustee or any Holder for the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents or the Intercreditor Agreements or for any failure of the Issuer, 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 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 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 shall be entitled may hold or obtain indicia of ownership primarily to conclusively rely upon and enforce each and all protect the security interest of the rights, privileges, immunities, indemnities Collateral Agent in the Notes Collateral and benefits of the Trustee under Article 7; provided that any references such actions taken by the Collateral Agent shall not be construed as or otherwise constitute any participation in the management of such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”Notes Collateral.
(fi) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by two Officers pursuant to this Section 11.09(i) (a “Security Document Order”), the Collateral Agent is hereby authorized to execute 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) 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 rely uponall of the protections, immunities, indemnities, rights and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by privileges of the proper Person (whether or not such Person in fact meets the requirements Trustee set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof)this Indenture, and may act upon any all such statement prior to receipt of written confirmation thereof protections, immunities, indemnities, rights and privileges shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered apply to the Collateral Agent and copies of all documents delivered to in its roles under any Security Document or the Collateral Agent pursuant to the Collateral DocumentsIntercreditor Agreements, whether or not expressly stated therein.
Appears in 1 contract
Sources: Indenture (Egalet Us Inc.)
Collateral Agent. (a) The On the Issue Date, the Collateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, shall be appointed for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in Holders of the Collateral. The Collateral Agent Notes and is hereby authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunderenter into the Pledge Agreements.
(b) Neither Subject to the terms of this Indenture and the Pledge Agreements, the Collateral Agent (directly or through LSC Sub-Agents) and any Additional Share Pledge Collateral Agent will hold and will be entitled to enforce on behalf of the Holders of Notes, all Liens on the Collateral.
(c) All of the rights, protections, benefits, privileges, indemnities and immunities granted to the Trustee nor hereunder shall inure to the benefit of the Collateral Agent (including each LSC Sub-Agent duly appointed by it) and any Additional Share Pledge Collateral Agent.
(d) The Collateral Agent, or any LSC Sub-Agent, as the case may be, shall be authorized to appoint LSC Sub-Agents as necessary in its respective sole discretion and any such appointment shall be reflected in documentation (which the Collateral Agent is hereby authorized to enter into). Except as otherwise explicitly provided herein or in the Security Documents, no Collateral Agent nor any of their its respective officers, directors, employees, attorneys employees or agents will or other related persons shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose collect or realize upon or otherwise enforce any of the Liens Collateral or Collateral Documents or for any delay in doing so. Neither the Trustee nor the Collateral Agent nor so or shall be under any of their respective officers, directors, employees, attorneys obligation to sell or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing otherwise dispose of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at upon the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon Person or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to the Collateral or any or all of the Liens, Collateral Documents or Collateral.
(d) The part thereof. Each Collateral Agent will shall be accountable only for amounts that it actually receives as a result of the enforcement exercise of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder such powers, and under the Collateral Documents, neither the Collateral Agent nor any of its respective officers, directors, employees or agents shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants and other experts selected by it, and shall not be liable responsible for any action taken act or not taken by it in accordance with the advice of any such counselfailure to act, accountants except for its own gross negligence or expertswillful misconduct.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.
Appears in 1 contract
Sources: Indenture (GeoPark LTD)
Collateral Agent. (a) The Notwithstanding anything else to the contrary herein, whenever reference is made in this Indenture or the Security Documents (including the Intercreditor Agreement or any Other Intercreditor Agreement) 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 agrees 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 will hold shall not have received written instruction, advice or concurrence from, as applicable, the security interests Holders representing such number or percentage of outstanding aggregate principal of the Notes as shall be expressly provided for herein or in any other Security Document, or in the Collateral created under manner required pursuant to the Collateral Documents Intercreditor Agreement, in respect of such action and, if it so requests, it shall first be indemnified to which it is a party as contemplated by this Indenture, and its satisfaction against any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, liability and expense which may be incurred by it by reason of taking or continuing to act in preservation of the security interest in the Collateraltake any such action. The Collateral Agent shall have no liability for any failure or delay in taking any actions contemplated above as a result of a failure or delay on the part of such Holders or such other party as required by the Intercreditor Agreement, as applicable, to provide such instruction, advice or concurrence. This provision is authorized intended solely for the benefit of the Collateral Agent and empowered its successors and permitted assigns and is not intended to appoint one and will not entitle the other parties hereto to any defense, claim or more co-collateral agents counterclaim, or confer any rights or benefits on any party hereto. Subject to the foregoing (and the other provisions of this Section 12.15) and the terms of the Security Documents and any other applicable provisions of this Indenture, the Collateral Agent shall take such action with respect to any Default or Event of Default as it deems necessary or appropriate; providedmay be requested by the Holders of a majority in principal amount of the outstanding Notes. For avoidance of doubt, however, that no collateral agent hereunder nothing herein shall be personally liable by reason deemed to require the Collateral Agent to obtain a consent or instruction from the Holders if the Indenture provides that such action can be taken at the request or direction of any act or omission the Company without the consent of any other collateral agent hereunderthe Holders.
(b) Neither The Collateral Agent may resign at any time by notice to the Trustee nor and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. The Collateral Agent may be removed by the Company at any time, upon thirty days written notice to the Collateral Agent. If the Collateral Agent resigns or is removed under this Indenture, the Company shall appoint a successor collateral agent. If no successor collateral agent is appointed and has accepted such appointment within 30 days after the Collateral Agent gives notice of resignation or is removed, the retiring Collateral Agent may (at the expense of the Company), at its option, appoint a successor Collateral Agent or petition a court of competent jurisdiction for the appointment of 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” shall mean such successor collateral agent, and the retiring or removed Collateral Agent’s appointment, powers and duties as the Collateral Agent shall be terminated. After the retiring Collateral Agent’s resignation or removal hereunder, the provisions of this Section 12.15 (and Section 7.06) shall continue to inure to its benefit and the retiring or removed Collateral Agent shall not by reason of such resignation or removal 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.
(c) Wilmington Trust, National Association shall initially act as Collateral Agent and shall be authorized to appoint co-Collateral Agents, agents or subagents as necessary in its sole discretion and shall not be responsible for the acts or omissions of any co-Collateral Agent, subagent or other agents appointed with due care. Except as otherwise explicitly provided herein, in the Security Documents, the Intercreditor Agreement or any Other Intercreditor Agreement, neither the Collateral Agent nor any of its Affiliates or its and their respective officers, directors, employees, attorneys employees or agents will persons shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose collect or realize upon or otherwise enforce any of the Liens Collateral or Collateral Documents or for any delay in doing so. Neither the Trustee nor the Collateral Agent nor so or shall be under any of their respective officers, directors, employees, attorneys obligation to sell or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing otherwise dispose of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at upon the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon Person or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to the Collateral or any or all of the Liens, Collateral Documents or Collateral.
(d) part thereof. The Collateral Agent will shall be accountable only for amounts that it actually receives as a result of the enforcement exercise of such powers.
(d) The Collateral Agent is authorized and directed to (i) enter into the Security Documents to which it is party, whether executed on or after the Closing Date, (ii) enter into the Intercreditor Agreement, any Other Intercreditor Agreement or any other intercreditor agreement permitted pursuant to Section 11.03, (iii) make the representations of the Liens Holders set forth in the Security Documents, the Intercreditor Agreement, any Other Intercreditor Agreement or Collateral any other intercreditor agreement permitted pursuant to Section 11.03, (iv) bind the Holders on the terms as set forth in the Security Documents, the Intercreditor Agreement, any Other Intercreditor Agreement or any other intercreditor agreement permitted pursuant to Section 11.03 and (v) perform and observe its obligations under the Security Documents, the Intercreditor Agreement, any Other Intercreditor Agreement or any other intercreditor agreement permitted pursuant to Section 11.03.
(e) In acting as If at any time or times the 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 Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent hereunder and under pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 7, the 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, with such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents, the Intercreditor Agreement, any Other Intercreditor Agreement or any other intercreditor agreement permitted pursuant to Section 11.03.
(f) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders to assure that the Collateral exists or is owned by any 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 of the Grantor’s property constituting collateral intended to be subject to the Lien and security interest of the 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 Indenture, any Security Document, the Intercreditor Agreement, any Other Intercreditor Agreement or any other intercreditor agreement permitted pursuant to Section 11.03, other than pursuant to the instructions of the Holders of a majority in principal amount of the outstanding Notes or as otherwise provided in this Indenture or the Security Documents.
(g) Notwithstanding anything to the contrary contained in this Indenture, the Intercreditor Agreement, any Other 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 required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under any 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. The Collateral Agent shall at any time be entitled to conclusively rely upon and enforce each and all of cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking from the rights, privileges, immunities, indemnities and benefits of Company or the Trustee under Article 7; provided that any references in such Article 7 Holders to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”sufficient.
(fh) 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 (including any electronic message, Internet or intranet website posting or other distributioni) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants and other experts selected by it, and shall not be liable for any action taken or not omitted to be taken by it in accordance connection with this Indenture, the Intercreditor Agreement, any Other Intercreditor Agreement and the Security Documents or instrument referred to herein or therein, except to the extent that any of 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, 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 advice of any such counsel, accountants or expertsCompany (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law).
(gi) At all times when The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or in the possession or control of any agent or bailee. The Collateral Agent shall be deemed to have exercised reasonable care in the custody of Collateral in its possession if the Collateral is accorded treatment substantially equal to that which they accord similar property held for its own benefit and shall not be liable or responsible for any loss or diminution in value of any of the Collateral (or for determining the value of the Collateral), including, without limitation, by reason of the act or omission of any carrier (including overnight carriers with respect to the delivery of possessory collateral), forwarding agency or other agent or bailee selected by the Collateral Agent in good faith.
(j) 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, the Intercreditor Agreement, any Other Intercreditor Agreement, 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 Agreement, any Other Intercreditor Agreement and the Security Documents, the Collateral Agent or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Agent or the Trustee in the Collateral and that any such actions taken by the Collateral Agent or the Trustee 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 not itself required to acquire title to an asset for any reason, or take any 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, the Company will deliver to ’s or the Trustee’s sole discretion may cause the Collateral Agent or the Trustee to be considered an “owner or operator” under the provisions of the Comprehensive Environmental Response, which shall deliver Compensation and Liability Act (“CERCLA”), 42 U.S.C. §9601, et seq., or otherwise cause the Collateral Agent or the Trustee to the Holders of Notesincur liability under CERCLA or any other federal, copies of all Collateral Documents delivered to state or local law, the Collateral Agent and copies the Trustee reserves the right, instead of all documents delivered taking such action, to either resign as the Collateral Agent pursuant or the Trustee or arrange for the transfer of the title or control of the asset to a court-appointed receiver. Neither the Collateral Agent nor the Trustee shall be liable to the Company, the Guarantors or any other Person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s or the Trustee’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment.
(k) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents, the Intercreditor Agreement or any Other Intercreditor Agreement and to the extent not prohibited under the Intercreditor Agreement or any Other Intercreditor Agreement, for turnover to the Trustee to make further distributions of such funds to itself, the Trustee and the Holders in accordance with the provisions of Section 6.06 and the other provisions of this Indenture.
(l) Notwithstanding anything to the contrary in this Indenture or in any Security Document, Intercreditor Agreement or any Other Intercreditor Agreement, in no event shall the Collateral Agent be responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance of the security interests or Liens intended to be created by this Indenture, the Security Documents or the Intercreditor Agreement, or Other Intercreditor Agreement (including without limitation the filing or continuation of any Uniform Commercial Code financing or continuation statements or similar documents or instruments), nor shall the Collateral Agent be responsible for, or makes any representation regarding, the validity, effectiveness or priority of any of the Security Documents or the security interests or Liens intended to be created thereby.
(m) Before the Collateral Agent acts or refrains from acting in each case at the request or direction of the Company or the Guarantors, it may require an Officer’s Certificate and an Opinion of Counsel, which shall conform to the provisions of Section 12.03. The Collateral Agent shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion.
(n) The Collateral Agent, in executing and performing its duties under the Security Documents, shall be entitled to all of the rights, protections, immunities and indemnities granted to it hereunder, including after the satisfaction and discharge of this Indenture or the payment in full of the Notes.
(o) The Collateral Agent (and Trustee) shall be under no obligation to effect or maintain insurance or to renew any policies of insurance or to inquire as to the sufficiency of any policies of insurance carried by the Company or any Guarantor, or to report, or make or file claims or proof of loss for, any loss or damage insured against or that may occur, or to keep itself informed or advised as to the payment of any taxes or assessments, or to require any such payment to be made.
(p) For avoi
Appears in 1 contract
Sources: Indenture (American Airlines, Inc.)
Collateral Agent. (a) The Collateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, Trustee and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation each of the security interest in Holders by acceptance of the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason Securities hereby authorize the appointment of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral Agent nor as the Trustee’s and the Holders’ Collateral Agent under the Security Documents and in its capacity as mortgagee and security trustee pursuant to the Collateral Rig Mortgage, 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 to take such action on their behalf under the provisions of the Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Security Documents, together with such powers as are reasonably incidental thereto. Notwithstanding any of their respective officersprovision to the contrary contained elsewhere in this Indenture and the Security Documents, 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 duties of the Collateral DocumentsAgent shall be ministerial and administrative in nature, for and the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations responsibilities, except those expressly set forth herein and in the Note Security Documents to which it the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or fiduciary relationship with the Trustee, any Holder, the Company, any Collateral Grantor or any Guarantor, and its duties hereunder no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be administrative in natureread into this Indenture and the Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoingforegoing sentence, the use of the term “agent” herein and in the other Note Documents this 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 and insteadapplicable 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights . The Trustee is authorized and powers that are expressly contemplated directed by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, Holders and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders by acquiring the Securities are deemed to have authorized the Trustee, as shall be necessaryapplicable, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose cause the Collateral Agent to liability or that enter into and perform its obligations under the Security Documents. The Collateral Agent is contrary authorized and directed by the Trustee and the Holders and the Holders by acquiring the Securities are deemed to any Note Document or Applicable Lawshave authorized the Collateral Agent, and to (3i) except as expressly set forth in enter into the Note Security Documents to which it is a party, (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, including entering into amendments, supplements and other modifications permitted by the terms of this Indenture or the Security Documents. Each Holder, by its acceptance of a Security, 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 Indenture. Each of the Holders by acquiring the Securities is hereby deemed to have directed the Trustee to appoint the Collateral Agent shall not as its mortgagee and security trustee and, for purposes of Swiss law, as agent, to receive, hold, administer and enforce the Collateral Rig Mortgage covering the Collateral Rig, as contemplated under this Indenture. Without limiting the generality of the foregoing, in relation to Swiss law-governed Security Documents (the “Swiss Security Documents”), each present and future Holder, by its acceptance of a Security, is deemed to have consented and agreed that:
(a) the Collateral Agent holds: (A) any duty security created or evidenced or expressed to disclosebe created or evidenced under or pursuant to a Swiss Security Document by way of a security assignment (Sicherungsabtretung) or transfer for security purposes (Sicherungsübereignung) or any other non-accessory (nicht akzessorische) security and (B) any proceeds and other benefits of such security, and shall not be liable as fiduciary (treuhänderisch) in its own name but for the failure account of all relevant Holders which have the benefit of such security in accordance with this Indenture and the respective Swiss Security Document; and each present and future Holder hereby agrees that the Collateral Agent enters into any such Swiss Security Document as fiduciary (treuhänderisch) in its own name but for the account of all relevant Holders; and
(b) it authorizes the Collateral Agent: (A) to disclose(a) accept and execute as its direct representative (direkter Stellvertreter) any Swiss law pledge or any other Swiss law accessory (akzessorische) security created or evidenced or expressed to be created or evidenced under or pursuant to a Swiss Security Document for the benefit of such ▇▇▇▇▇▇ and (b) hold, administer and, if necessary, enforce any information relating such security as direct representative (direkter Stellvertreter) on behalf of each relevant Holder which has the benefit of such security; (B) to agree as its direct representative (direkter Stellvertreter) to amendments and alterations to any Note Party Swiss Security Document which creates or evidences or expressed to create or evidence a pledge or any other Swiss law accessory (akzessorische) security; (C) to effect as its direct representative (direkter Stellvertreter) any release of a security created or evidenced or expressed to be created or evidenced under a Swiss Security Document in accordance with this Indenture and the respective Swiss Security Document; and (D) to exercise as its Affiliates that is communicated direct representative (direkter Stellvertreter) such other rights granted to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacityunder this Indenture and under the relevant Swiss Security Document. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge or notice of the occurrence of any Default or Event of Default Default, unless and until the Collateral Agent shall have received written notice thereof (stating that it is from the Trustee or unless a “written notice of default” any event which is in fact such a Default is received by the Collateral Agent at the address specified in Section 14.01, and describing such notice references the Securities and this Indenture. The Collateral Agent shall take such action with respect to such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions Default as may be given to it requested by the Trustee, Trustee in accordance with Article 6 or the Administrative Determination Holder(s), and prior Holders of a majority in aggregate principal amount of the Securities (subject to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this IndentureSection 12.05). The Collateral Agent will shall have no obligation and makes no representation whatsoever to the Trustee or any of the Holders as to the existence, genuineness, value or protection of the Collateral or the sufficiency of any Security Documents, or that the Collateral is owned by any of the Collateral Grantors 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 of the Collateral Grantor’s property constituting Collateral intended to be subject to such directions the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be given to it by the Trustee be, or the Administrative Determination Holder(s)genuineness, and prior validity, marketability or sufficiency thereof or title thereto, or to the Braidwell Disposition Dateexercise at all or in any particular manner or under any duty of care, the Braidwell Holdersdisclosure or fidelity, and prior or to the Deerfield Disposition Datecontinue exercising, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) The Collateral Agent shall be entitled to rely uponauthorities, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document powers granted or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered available to the Collateral Agent pursuant to this Indenture or any other Security Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral DocumentsAgent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act. For the avoidance of doubt, nothing herein shall require the Collateral Agent 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 perfection of the security interests purported to be created by the Security Documents and such responsibility shall be solely that of the Company. Each of 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 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. 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 to enter into and perform its obligations each Deed of Quiet Enjoyment. 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 each Deed of Quiet Enjoyment to which it is a party, (ii) bind the Trustee and the Holders on the terms as set forth in each such Deed of Quiet Enjoyment and (iii) perform and observe its obligations and exercise its rights and powers under each such Deed of Quiet Enjoyment, including entering into amendments, supplements and other modifications permitted by the terms of this Indenture or the applicable Deed of Quiet Enjoyment. Each Holder, by its acceptance of a Security, is deemed to have consented and agreed to the terms of each Deed of Quiet Enjoyment, 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.
Appears in 1 contract
Sources: Indenture (Transocean Ltd.)
Collateral Agent. (a) The Trustee shall act as Collateral Agent agrees that it will hold the security interests and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Collateral created under the Collateral Documents to which it is a party as contemplated by this IndentureSecurity Documents, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor neither the Collateral Agent nor any of their its respective officers, directors, employees, attorneys employees or agents will shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose collect or realize upon or otherwise enforce any of the Liens Collateral or Collateral Documents or for any delay in doing so. Neither the Trustee nor the Collateral Agent nor so or shall be under any of their respective officers, directors, employees, attorneys obligation to sell or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing otherwise dispose of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at upon the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon Person or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to the Collateral or any or all of the Liens, Collateral Documents or Collateral.
(d) part thereof. The Collateral Agent will shall be accountable only for amounts that it actually receives as a result of the enforcement exercise of such powers, and neither the Liens 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, negligence or bad faith.
(b) The Trustee, as Collateral Agent, is authorized and directed to (i) enter into the Security Documents, (ii) bind the Holders on the terms as set forth in the Security Documents and (iv) perform and observe its obligations under the Security Documents.
(ec) In acting as If the Company (i) incurs Indebtedness constituting Credit Agreement Obligations at any time when no Intercreditor Agreement is in effect or at any time when Indebtedness constituting Credit Agreement Obligations entitled to the benefit of an existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Collateral Agent hereunder an Officer’s Certificate so stating and under requesting the Collateral DocumentsAgent 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 be entitled (and is hereby authorized and directed to) (A) enter into such documents and agreements (including amendments or supplements to conclusively rely upon and enforce each and all the Intercreditor Agreement) as the Company or the new Credit Agent shall request in order to provide to the new Credit Agent the rights of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) The Collateral Credit 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated contemplated by the proper Person Intercreditor Agreement and (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(gii) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to Credit Agent the Collateral perfected by possession together with any necessary endorsements (or otherwise allow such Credit Agent and copies to obtain control of all documents delivered to the Collateral Agent pursuant to the Collateral Documentssuch Collateral).
Appears in 1 contract
Sources: Indenture (GXS Corp)
Collateral Agent. May File Proofs of Claim.
(a) The Collateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation In case of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason pendency of any act receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or omission of other judicial proceeding relative to any other collateral agent hereunder.
(b) Neither the Trustee nor Loan Party, the Collateral Agent nor any (irrespective of their respective officers, directors, employees, attorneys or agents will be responsible or liable for whether the existence, genuineness, value or protection principal of any Collateral, for the legality, enforceability, effectiveness, Loan shall then be due and payable as herein expressed or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral by declaration or otherwise as to the maintenance and irrespective of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) whether the Collateral Agent shall not be subject to have made any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting demand on the generality of the foregoing, the use of the term “agent” herein and in the other Note Documents with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or expressBorrower) obligations arising under agency doctrine of any Applicable Law and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessaryentitled and empowered, by intervention in such proceeding or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligatedotherwise:
(i) to act upon directions purported file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be delivered necessary or advisable in order to it by have the claims of Lenders and the Issuing Bank and the Collateral Agent (including any Person;claim for the reasonable expenses, disbursements and advances of Lenders and the Issuing Bank and the Collateral Agent and their respective agents and counsel and all other amounts due to Lenders, the Issuing Bank and the Collateral Agent) allowed in such judicial proceeding; and
(ii) to foreclose upon collect and receive any monies or otherwise enforce other property payable or deliverable on any Lien created under such claims; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the Issuing Bank to make such payments to the Collateral Documents; or
(iii) except as expressly provided Agent and, in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts event that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver consent to the Trusteemaking of such payments directly to Lenders and the Issuing Bank, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered pay to the Collateral Agent any amount due for the reasonable expenses, disbursements and copies advances of all documents delivered to the Collateral Agent pursuant to and its agents and counsel, and any other amounts due the Collateral DocumentsAgent.
(b) Nothing contained herein shall be deemed to authorize the Collateral Agent to authorize or consent to or accept or adopt on behalf of any Lender or Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or Issuing Bank or to authorize the Collateral Agent to vote in respect of the claim of any Lender or Issuing Bank in any such proceeding.
Appears in 1 contract
Collateral Agent. (a) The Trustee shall act as Collateral Agent agrees that it will hold the security interests and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Collateral created under the Collateral Documents to which it is a party as contemplated by this IndentureSecurity Documents, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor neither the Collateral Agent nor any of their its respective officers, directors, employees, attorneys employees or agents will shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose collect or realize upon or otherwise enforce any of the Liens Collateral or Collateral Documents or for any delay in doing so. Neither the Trustee nor the Collateral Agent nor so or shall be under any of their respective officers, directors, employees, attorneys obligation to sell or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing otherwise dispose of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at upon the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon Person or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to the Collateral or any or all of the Liens, Collateral Documents or Collateral.
(d) part thereof. The Collateral Agent will shall be accountable only for amounts that it actually receives as a result of the enforcement exercise of such powers, and neither the Liens Collateral Agent nor any of its officers, directors, employees or Collateral Documentsagents shall be responsible for any act or failure to act hereunder, except for its own willful misconduct, negligence or bad faith.
(eb) In acting The Trustee, as Collateral Agent hereunder Agent, is authorized and directed to (i) enter into the Security Documents, (ii) enter into the Intercreditor Agreement, (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreement and (iv) perform and observe its obligations under the Security Documents and the Intercreditor Agreement.
(c) If the Issuers (i) incur Indebtedness constituting Credit Agreement Obligations at any time when no Intercreditor Agreement is in effect or at any time when Indebtedness constituting Credit Agreement Obligations entitled to the benefit of an existing Intercreditor Agreement is concurrently retired, and (ii) deliver to the Collateral DocumentsAgent 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 be entitled to conclusively rely upon (and enforce each is hereby authorized and all of directed to) enter into such Intercreditor Agreement, bind the rightsHolders on the terms set forth therein, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” perform and any references to “negligence” shall be references to “gross negligence”observe its obligations thereunder.
(fd) The If (i) the Issuers at any time incur any Indebtedness constituting Other Second-Lien Obligations, (ii) the indenture or agreement governing such Indebtedness provides that, notwithstanding the date, manner or order of grant, attachment or perfection of any Liens granted to the Collateral Agent under the Security Documents (the "Liens Securing Note Obligations") or granted to the holders of Other Second-Lien Obligations or any agent or representative for the holders of Other Second-Lien Obligations (the "Liens Securing Other Second-Lien Obligations"), the Liens Securing Note Obligations and the Liens Securing Other Second-Lien Obligations shall be entitled to rely uponof equal dignity, priority and shall not incur any liability for relying uponrank, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distributioniii) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will Issuers deliver to the Trustee, which shall Collateral Agent an Officer's Certificate so stating and requesting that the Collateral Agent assign or transfer the Liens Securing Note Obligations to a Common Collateral Agent identified therein and (iv) the Issuers deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies the Common Collateral Agent an Opinion of all documents delivered Counsel stating that, in the opinion of such counsel, the Common Collateral Agent is empowered and obligated (on substantially the terms applicable to the Collateral Agent pursuant to the Indenture Documents) to hold the Liens Securing Note Obligations and all Liens Securing Other-Second Lien Obligations and all proceeds of all such Liens for the equal and ratable benefit of the holders of all Obligations secured thereby and 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 Officer's Certificate, then (A) the Liens Securing Note Obligations shall be of equal dignity, priority and rank with all such Liens Securing Other Second-Lien Obligations and (B) the Collateral DocumentsAgent shall assign or transfer the Liens Securing Note Obligations to the Common Collateral Agent as requested in such Officer's Certificate.
Appears in 1 contract
Sources: Indenture (On Semiconductor Corp)
Collateral Agent. (a) The Trustee shall initially act as Collateral Agent agrees that it will hold the security interests and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Collateral created under Security Documents or the Collateral Documents to which it is a party as contemplated by this IndentureIntercreditor Agreement, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor neither the Collateral Agent nor any of their its respective officers, directors, employees, attorneys employees or agents will shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose collect or realize upon or otherwise enforce any of the Liens Collateral or Collateral Documents or for any delay in doing so. Neither the Trustee nor the Collateral Agent nor so or shall be under any of their respective officers, directors, employees, attorneys obligation to sell or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing otherwise dispose of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at upon the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon Person or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to the Collateral or any or all of the Liens, Collateral Documents or Collateral.
(d) part thereof. The Collateral Agent will shall be accountable only for amounts that it actually receives as a result of the enforcement exercise of such powers, and neither the Liens Collateral Agent nor any of its officers, directors, employees or Collateral Documentsagents shall be responsible for any act or failure to act hereunder, except for its own willful misconduct, gross negligence or bad faith.
(eb) In acting The Trustee, as Collateral Agent hereunder Agent, is authorized and directed to (i) enter into the Security Documents, (ii) enter into the Intercreditor Agreement, (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreement and (iv) perform and observe its obligations under the Security Documents and the Intercreditor Agreement.
(c) If the Company (i) Incurs First Lien Obligations at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting First Lien Obligations entitled to the benefit of an existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Collateral DocumentsAgent 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 be entitled to conclusively rely upon (and enforce each is hereby authorized and all of directed to) enter into such Intercreditor Agreement, bind the rights, privileges, immunities, indemnities and benefits of Holders on the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) The Collateral Agent shall be entitled to rely uponterms set forth therein, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine perform and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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 expertsobserve its obligations thereunder.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.
Appears in 1 contract
Sources: Indenture (Columbus McKinnon Corp)
Collateral Agent. (a) The 14.1 By their execution of Subscription Agreements in the form attached to the Memorandum as Annex A, the Noteholders have authorized the Collateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, exercise for the benefit ofof the Noteholders all rights, powers and remedies provided to it under or pursuant to this Agreement, including all rights, powers and remedies upon an Event of Default, subject always to the terms, conditions, limitations and restrictions provided in this Agreement. Except with respect to those matters as to which the Collateral Agent is expressly required to act under the terms of this Article XIV, the Secured PartiesCollateral Agent may act or refrain from acting with the written consent of the Requiste Holders, without limiting which Requisite Holders shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder such direction shall not be personally liable in conflict with any rule of law or expose the Collateral Agent to personal liability, and the Collateral Agent may take any action deemed proper by reason the Collateral Agent, in its discretion, which is not inconsistent with such direction or the terms of any act or omission of any other collateral agent hereunderthis Agreement.
(b) 14.2 The Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement. Neither the Trustee nor the Collateral Agent nor any of their respective its partners, members, shareholders, officers, directors, employees, attorneys employees 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken omitted by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or as such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) Agreement or hereunder or in connection herewith or therewith, be responsible for the absence consequence of any oversight or error of judgment or answerable for any loss, unless caused by its own or their gross negligence or willful misconduct as determined by the a final and non-appealable judgment (not subject to further appeal) of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge duties of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon mechanical and enforce each and all of administrative in nature; the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) The Collateral Agent shall be entitled to rely upon, not have by reason of the Agreement or any other transaction document a fiduciary relationship in respect of any Grantor or any Noteholder; and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth nothing in the Note Documents for being the signatoryAgreement or any other transaction document, sender expressed or authenticator thereof). The Collateral Agent also may rely implied, is intended to or shall be so construed as to impose upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent any obligations in respect of the Agreement or any other transaction document except as expressly set forth herein and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documentstherein.
Appears in 1 contract
Sources: Security Agreement (Vyteris, Inc.)
Collateral Agent. (a) 4.1 The Collateral Agent agrees that it will hold Agent's duties hereunder may be altered, amended, modified or revoked only by a writing signed by the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this IndentureCompany, each Investor and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) 4.2 The Collateral Agent shall not have any be obligated only for the performance of such duties or obligations except those expressly as are specifically set forth in the Note Documents to which it is a party, herein and its no duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein may rely and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, protected in relying or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the Collateral Agent shall not be required to take refraining from acting on any action that, in its opinion or the opinion of its counsel, may expose instrument reasonably believed by the Collateral Agent to liability be genuine and to have been signed or that is contrary to any Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained presented by the Person serving as Collateral Agent proper party or any of its Affiliates in any capacityparties. The Collateral Agent shall not have no liability under and no duty to inquire as to the provisions of any agreement other than this Agreement. The Collateral Agent's sole responsibility shall be liable for any action taken or not taken by it the safekeeping and disbursement of the Collateral Amount in accordance with the consent or at the request terms of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the this Agreement. Collateral Agent shall believe in good faith have no implied duties or obligations and shall not be necessary, under the circumstances as provided in the Note Documents) charged with knowledge or in the absence notice of its own gross negligence any fact or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly circumstance not specifically set forth herein. The Collateral Agent shall not be deemed not personally liable for any act the Collateral Agent may do or omit to have knowledge do hereunder as the Collateral Agent while acting in good faith and in the absence of gross negligence, fraud or willful misconduct, and any Default act done or Event of Default unless and until omitted by the Collateral Agent in good faith pursuant to the written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer advice of the Collateral Agent's outside legal counsel shall be conclusive evidence of such good faith. In no event shall the Collateral Agent by be liable for incidental, indirect, special, consequential or punitive damages (including, but not limited to lost profits), even if the Company Collateral Agent has been advised of the likelihood of such loss or any Holderdamage and regardless of the form of action. The Collateral Agent will shall not be subject obligated to such directions as may be given to it by take any legal action or commence any proceeding in connection with the TrusteeCollateral Amount, any account in which the Collateral Amount is deposited, this Agreement, or the Administrative Determination Holder(s)to appear in, and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required prosecute or permitted by this Indenture)defend any such legal action or proceeding. The Collateral Agent will may consult legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving any party hereto, and shall incur no liability and shall be subject to fully indemnified from any liability whatsoever in acting in good faith in accordance with the opinion or instruction of such directions as may be given to it counsel. Company shall promptly pay, upon demand, the reasonable fees and expenses of any such counsel, provided, however, if such amounts is not paid by the Trustee or Company within 30 days of the Administrative Determination Holder(s), and prior to date of the Braidwell Disposition DateCollateral Agent's invoice, the Braidwell Holderseach of the Holders shall be jointly and severally liable to pay such amounts.
4.3 The Collateral Agent is hereby expressly authorized to comply with and obey orders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required judgments or permitted by this Indenture)decrees of any court of law. Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, If the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by obeys or complies with any Person;
(ii) to foreclose upon such order, judgment or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documentsdecree, the Collateral Agent shall not be entitled liable to conclusively rely upon and enforce each and all any of the rightsparties hereto or to any other person, privilegesfirm or corporation by reason of such order, immunitiesjudgment or decree being subsequently reversed, indemnities and benefits modified, annulled, set aside, vacated or found to have been entered without jurisdiction.
4.4 The Collateral Agent shall not be liable in any respect on account of the Trustee under Article 7; provided that identity, authorization or rights of the parties executing or delivering or purporting to execute or deliver the Purchase Agreement or any references documents or papers deposited or called for thereunder in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “the absence of gross negligence”, fraud or willful misconduct.
(f) 4.5 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by employ such experts as the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may deem necessary properly to advise the Collateral Agent in connection with the Collateral Agent's duties hereunder, may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not advice of such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof)experts, and may act upon any pay such statement prior to receipt experts reasonable compensation, the costs of written confirmation thereof and which compensation shall not incur any liability for relying thereon. be borne by the Company.
4.6 The Collateral Agent's responsibilities as Collateral Agent may consult with legal counsel, independent accountants hereunder shall terminate if the Collateral Agent shall resign by giving written notice to the Company and other experts selected by it, and the Investors. Such resignation shall not be liable effective until the earlier of (x) thirty (30) days following delivery of such notice and (y) the appointment of a successor Collateral Agent. In the event of any such resignation, the Investors and the Company shall appoint a successor Collateral Agent and the Collateral Agent shall deliver to such successor Collateral Agent any funds and other documents held by the Collateral Agent hereunder or pursuant hereto.
4.7 If the Collateral Agent reasonably requires other or further instruments in connection with this Agreement or obligations in respect hereto, the necessary parties hereto shall join in furnishing such instruments.
4.8 It is understood and agreed that should any dispute arise with respect to the delivery and/or ownership or right of possession of the funds held by the Collateral Agent hereunder, or if otherwise permitted or required under this Agreement, the Collateral Agent is authorized and directed in the Collateral Agent's sole discretion (1) to retain in the Collateral Agent's possession without liability to anyone all or any part of said funds until such dispute shall have been settled either by mutual written agreement of the parties concerned or by a final order, decree or judgment of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but the Collateral Agent shall be under no duty whatsoever to institute or defend any action taken such proceedings or not taken (2) to deliver the funds held by it the Collateral Agent hereunder to a state or Federal court having competent subject matter jurisdiction and located in the City of New York in accordance with the advice of any such counsel, accountants or expertsapplicable procedure therefor.
(g) At all times when the Trustee is not itself the Collateral Agent, the 4.9 The Company will deliver and each Investor agree jointly and severally to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to indemnify and hold harmless the Collateral Agent and copies its partners, employees, agents and representatives from any and all claims, liabilities, costs or expenses (including reasonable legal fees and expenses) in any way arising from or relating to the duties or performance of all documents delivered to the Collateral Agent pursuant hereunder or the transactions contemplated hereby or by the Purchase Agreement other than any such claim, liability, cost or expense to the extent the same shall have been determined by final, unappealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, fraud or willful misconduct of the Collateral DocumentsAgent. Notwithstanding the foregoing, as between the Company and the Investors, the Company shall bear the cost of the Collateral Agent's fees and expenses for serving as Collateral Agent hereunder.
Appears in 1 contract
Sources: Cash Collateral Agreement (Vyteris Holdings (Nevada), Inc.)
Collateral Agent. (a) The Agent has participated in this Security Instrument as directed under and in accordance with the Financing Documents and will perform this Security Instrument solely in its capacity as Collateral Agent agrees that it will hold the security interests and not in the Collateral created under the Collateral Documents its individual capacity. In acting pursuant to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit ofSecurity Instrument Agreement, the Secured Parties, without limiting Agent shall be afforded all of the Collateral Agent’s rights, including under this Section 17.02powers, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized protections, immunities and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly indemnities set forth in the Note Financing Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting as if the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly same were specifically set forth herein. The Collateral With regards to any action or refusal to act that involves discretion on behalf of the Agent (including, but not limited to the exercise of any remedies and any permissive rights to request the Grantor provide documents or take actions), such action (or inaction) shall be deemed not taken (or omitted to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Defaultbe taken) is given by the Agent pursuant to a Responsible Officer the terms of the Collateral Agent by the Company or any HolderFinancing Documents and direction provided thereunder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the exercise its rights, privilegespowers and duties hereunder through agents, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 attorneys or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants and other experts selected by it, designees and shall not be liable for any action taken or not taken actions of any such party retained by it in accordance with good faith. The permissive authorizations, entitlements, powers and rights (including the advice right to request that the Grantor take an action or deliver a document and the exercise of remedies following an Event of Default) granted to the Agent herein shall not be construed as duties. Notwithstanding anything to the contrary contained herein or in applicable law, the Agent shall have no responsibility for (i) preparing, recording, filing, re- recording, or re-filing any financing statement, perfection statement, continuation statement or other instrument in any public office or for otherwise ensuring the perfection or maintenance of any such counselsecurity interest granted pursuant to, accountants or experts.
contemplated by, this Security Instrument (gii) At all times when taking any necessary steps to preserve rights against any parties with respect to any Property or (iii) taking any action to protect against any diminution in value of the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.Property. Article 14 -
Appears in 1 contract
Collateral Agent. (a) The Collateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth herein and in the Note Collateral Documents to which it the Collateral Agent is a party, and its duties hereunder and thereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or default, Event of Default, Specified Event of Default or Enforcement has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in the other Note Documents with reference to the Collateral Agent is not intended to connote any fiduciary or other implied continuing;
(or expressii) obligations arising under agency doctrine of any Applicable Law and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated hereby or by the Note Collateral Documents that, subject to which the terms hereof, Collateral Agent is as party that the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders Required Senior Lenders (or such other number or percentage of the Holders Senior Lenders as shall be necessary, expressly provided for herein or as in the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 this Agreement or any Note Collateral Document or Applicable Lawsapplicable law, and including for the avoidance of doubt any action that may be in violation of the automatic stay under any debtor relief law; and
(3iii) shall not, except as expressly set forth herein and in the Note Collateral Documents to which it the Collateral Agent is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, in its capacity as Collateral Agent, any information relating to any Note Party the Loan Parties or any of its their Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in Affiliates.
(b) Notwithstanding any capacity. The other provision of this Agreement or the Collateral Documents, the Collateral Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request or direction of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders Required Senior Lenders (or such other number or percentage of the Holders Senior Lenders as shall be necessary, expressly provided for herein or as in the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or (ii) in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth hereinjurisdiction by final and nonappealable judgment. The Collateral Agent shall be deemed not to have knowledge of any Default or default, Event of Default Default, Specified Event of Default, Sharing Event or Enforcement unless and until written notice thereof (describing such occurrence is given to a responsible officer of the Collateral Agent within Corporate Trust Services in writing by a Senior Lender or the Bank Agent referring to this Agreement, describing such occurrence and stating that it such notice is a “notice of default” and describing such Default or “notice of enforcement.”
(c) 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 this Agreement or any Collateral Document, (ii) the contents of any certificate, report or other document delivered hereunder or under any Collateral Document or in connection herewith or therewith, (iii) the performance or observance by any person other than the Collateral Agent of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any default, Event of Default, Specified Event of Default or Enforcement, (iv) is given to a Responsible Officer the validity, enforceability, effectiveness or genuineness of this Agreement, any Collateral Document or any other agreement, instrument or document or (v) the terms or provisions of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, Loan Documents or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Note Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) Each Senior Lender and the Bank Agent authorizes and directs the Collateral Agent to enter into the Collateral Documents to which it is a party on the date hereof on behalf of and for the benefit of the Secured Parties.
(e) The Collateral Agent will shall never be accountable only for amounts that it actually receives as a result required to use, risk or advance its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties or the enforcement exercise of any of its rights and powers under this Agreement or the Liens or Collateral Documents.
(ef) In acting as Collateral Agent hereunder and under the Collateral Documents, no event shall the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants and other experts selected by it, and shall not be liable for any action taken consequential, indirect, punitive or not taken by it in accordance with the advice special loss or damage of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any Collateral Document irrespective of whether the Collateral Agent has been advised of the likelihood of such counsel, accountants loss or expertsdamage and regardless of the form of action.
(g) At all times when In no event shall the Trustee Collateral Agent be responsible or 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, terrorist attacks or other disasters.
(h) Delivery of reports, documents and other information to the Collateral Agent is not itself for informational purposes only and the Collateral Agent’s receipt of the foregoing shall not constitute constructive knowledge of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents reports or other documents delivered to the Collateral Agent and copies other publicly available information shall not constitute actual or constructive knowledge.
(i) Knowledge of all or notices or other documents delivered to W▇▇▇▇ Fargo Bank, National Association in any capacity other than as Collateral Agent hereunder shall not constitute knowledge of or delivery to W▇▇▇▇ Fargo Bank, National Association in its capacity as Collateral Agent under this Agreement or the Collateral Documents. Knowledge of or notices or other documents delivered to W▇▇▇▇ Fargo Bank, National Association in any capacity other than as Bank Agent pursuant or Senior Lender hereunder shall not constitute knowledge of or delivery to W▇▇▇▇ Fargo Bank, National Association in its capacity as Bank Agent or Senior Lender under this Agreement or the Collateral Documents.
Appears in 1 contract
Sources: Note and Guarantee Agreement (Sunstone Hotel Investors, Inc.)
Collateral Agent. (a) The Trustee and each of the Holders by acceptance of the Securities hereby designates and appoints the Collateral Agent agrees that it will hold as its collateral agent under this Indenture and the security interests in Security Documents and the Trustee and each of the Holders by acceptance of the Securities hereby irrevocably authorizes the Collateral created Agent to take such action on its behalf under the Collateral provisions of this Indenture and the Security Documents and to which it is a party exercise such powers and perform such duties as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting are expressly delegated to the Collateral Agent’s rightsAgent by the terms of this Indenture and the Security Documents, including under this Section 17.02, to act in preservation of the security interest in the Collateraltogether with such powers as are reasonably incidental thereto. The Collateral Agent is authorized and empowered agrees to appoint one or more co-collateral agents act as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason such on the express conditions contained in this Section 11.07. The provisions of any act or omission this Section 11.07 are solely for the benefit of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 and none of the Collateral DocumentsTrustee, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents Holders nor the Company or any delay in doing so. Neither of the Trustee nor the Collateral Agent nor Guarantors shall have any rights as a third party beneficiary of any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making the provisions contained herein other than as expressly provided in Section 11.03. Notwithstanding any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect provision to the U.S. Patent contrary contained elsewhere in this Indenture and Trademark Office or U.S. Copyright Office.
(c) The the Security Documents, the Collateral Agent shall not have any duties or obligations responsibilities, except those expressly set forth in herein, nor shall the Note Documents Collateral Agent have or be deemed to which it is a partyhave any fiduciary relationship with the Trustee, any Holder or the Company or any Guarantor, and its duties hereunder no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be administrative in natureread into this Indenture and the Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoingforegoing sentence, the use of the term “agent” herein and in the other Note Documents this 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 and insteadapplicable 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are . Except as expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as otherwise provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a partythis Indenture, the Collateral Agent shall not have and may use its sole discretion with respect to exercising or refraining from exercising any duty discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to disclosetake or assert under this Indenture and the Security Documents, including the exercise of remedies pursuant to Article Six, and any action so taken or not taken shall not be liable for deemed consented to by the failure to disclose, any information relating to any Note Party or Trustee and the Holders.
(b) The Collateral Agent may execute any of its Affiliates that is communicated duties under this Indenture and the Security Documents by or through agents, employees or attorneys-in-fact and shall be entitled to or obtained by the Person serving as Collateral Agent or any advice of its Affiliates in any capacitycounsel 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 agents or employees shall (i) be liable for any action taken or not omitted to be taken by it any of them under or in connection with this Indenture or the consent transactions contemplated hereby (except for its own negligence or at willful misconduct) or under or in connection with any Security Document or the request of the Administrative Determination Holder(stransactions contemplated thereby (except for its own negligence or willful misconduct), prior or (ii) be responsible in any manner to the Braidwell Disposition DateTrustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Braidwell HoldersCompany or any Guarantor, and prior to the Deerfield Disposition Date, the Deerfield Holders (contained in this Indenture or such other number or percentage of the Holders as shall be necessaryany indenture, or as in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent shall believe under or in good faith connection with, this Indenture or any other indenture, the Security Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture or any other indenture or the Security Documents, or for any failure of the Company or any Guarantor or any other party to this Indenture or the Security Documents to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its agents or employees shall be necessaryunder 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, under or conditions of, this Indenture or any other indenture or the circumstances as provided in Security Documents or to inspect the Note Documentsproperties, books or records of the Company or any Guarantor.
(d) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall not be deemed not to have knowledge or notice of the occurrence of any Default or Event of Default Default, unless and until the Collateral Agent shall have received written notice thereof (from the Trustee or the Company referring to this Indenture, describing such Default or Event of Default and stating that it such notice is a “notice of default.” and describing The Collateral Agent shall take such action with respect to such Default or Event of DefaultDefault 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) is given take such action, or refrain from taking such action, with respect to a Responsible Officer such Default or Event of Default as it shall deem advisable.
(e) A resignation or removal of the Collateral Agent by the Company or any Holder. The and appointment of a successor Collateral Agent will be subject to such directions shall become effective only upon the successor Collateral Agent’s acceptance of appointment as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by provided in this IndentureSection 11.07(e). The Collateral Agent will be subject to such directions as may be given to it resign in writing at any time by so notifying the Company, the Trustee and each trustee, agent or the Administrative Determination Holder(s), and representative of holders of Permitted Additional Pari Passu Obligations at least 30 days prior to the Braidwell Disposition Date, proposed date of resignation. The Company may remove the Braidwell Holders, and Collateral Agent if: (i) the Collateral Agent is removed as Trustee under the Indenture; (ii) the Collateral Agent (x) fails to meet the requirements for being a Trustee under Section 7.10 (prior to the Deerfield Disposition Datedischarge 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; (iii) 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; (iv) a custodian or 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 Deerfield HoldersCompany 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 applicableCollateral Agent to the successor Collateral Agent, from time provided that all sums owing to time 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) The Trustee shall initially act as required or permitted by this Indenture)Collateral Agent and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as directed by otherwise explicitly provided herein or in the Administrative Determination Holder(s)Security Documents, prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, neither the Collateral Agent will not nor any of its officers, directors, employees or agents shall be obligated:
(i) liable for failure to act demand, collect or realize upon directions purported any of the Collateral or for any delay in doing so or shall be under any obligation to be delivered to it by any Person;
(ii) to foreclose upon sell or otherwise enforce dispose of any Lien created under Collateral upon the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, request of any other Person or to take any other action whatsoever with regard to the Collateral or any or all of the Liens, Collateral Documents or Collateral.
(d) part thereof. The Collateral Agent will shall be accountable only for amounts that it actually receives as a result of the enforcement exercise of such powers, and neither the Liens 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, as such and as Collateral Agent, is authorized and directed by the Holders and the Holders by acquiring the Securities and deemed to have authorized the Trustee and Collateral Agent to (i) enter into the Security Documents, (ii) bind the Holders on the terms as set forth in the Security Documents and (iii) perform and observe its obligations under the Security Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(fh) The Collateral Agent shall be have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by the Company and the Guarantors 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 rely uponany particular priority, or to determine whether all of the Grantor’s property constituting collateral intended to be subject to the Lien and security interest of the 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 Indenture or any 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 not incur have no other duty or liability whatsoever to the Trustee or any liability for relying upon, Holder as to any notice, request, certificate, consent, statement, instrument, document or other writing of the foregoing.
(including any electronic message, Internet or intranet website posting or other distributioni) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants and other experts selected by it, and i) shall not be liable for any action taken 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 an authorized officer, unless it is proved that the Collateral Agent was negligent in ascertaining the pertinent facts, (ii) shall not taken be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the 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) 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 any such counsel, accountants . The grant of permissive rights or experts.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered powers to the Collateral Agent and copies of all documents delivered shall not be construed to the Collateral Agent pursuant impose duties to the Collateral Documentsact.
Appears in 1 contract
Sources: Indenture (Freedom Group, Inc.)
Collateral Agent. (a) The Trustee shall initially act as Collateral Agent agrees that it will hold and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. In the security interests in event the Trustee and the Collateral created Agent shall at any time not be the same Person, the Collateral Agent shall take such actions under the Collateral Security Documents as are requested by the Trustee in accordance with this Indenture and as are not inconsistent with or contrary to which it is a party as contemplated by the provisions of this Indenture, and any and all proceeds thereof, for Security Document or the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest Intercreditor Agreement. Except as otherwise explicitly provided herein or in the Collateral. The Collateral Agent is authorized and empowered to appoint one Security Documents or more co-collateral agents as it deems necessary or appropriate; providedthe Intercreditor Agreement, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor neither the Collateral Agent nor any of their its respective officers, directors, employees, attorneys employees or agents will shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose collect or realize upon or otherwise enforce any of the Liens Collateral or Collateral Documents or for any delay in doing so. Neither the Trustee nor the Collateral Agent nor so or shall be under any of their respective officers, directors, employees, attorneys obligation to sell or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing otherwise dispose of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at upon the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon Person or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to the Collateral or any or all of the Liens, Collateral Documents or Collateral.
(d) part thereof. The Collateral Agent will shall be accountable only for amounts that it actually receives as a result of the enforcement exercise of such powers, and neither the Liens Collateral Agent nor any of its officers, directors, employees or Collateral Documentsagents shall be responsible for any act or failure to act hereunder, except for its own willful misconduct, gross negligence or bad faith.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(fb) The Collateral Agent shall be entitled to rely uponrely, and shall not incur be fully protected in relying, upon any liability for relying uponwriting, any resolution, notice, requestconsent, certificate, consentaffidavit, letter, telegram, facsimile, telex, or telephone message, statement, instrument, or other document or other writing (including any electronic message, Internet or intranet website posting or other distribution) conversation believed by it to be genuine and correct and to have been signed, sent sent, or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof)Persons, and may act upon advice and statements of legal counsel (including, without limitation, counsel to the Company or any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counselSubsidiary Guarantor), independent accountants and other experts and advisors selected by itthe 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 be indemnified to its satisfaction, if it so requests, 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 not in all cases be liable for 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 of the Trustee and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(c) The Collateral Agent shall not taken 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 it the Trustee in accordance with Article VI (subject to Section 11.11); provided, however, that unless and until the advice of Collateral Agent has received any such counselrequest, accountants the Collateral Agent may (but shall not be obligated to) take such action, or expertsrefrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.
(gd) At all times when The Collateral Agent shall be entitled to the compensation and indemnity set forth in Section 7.07 (with the references to the Trustee is not itself therein being deemed to refer to the Collateral Agent).
(e) The Trustee, as Collateral Agent, is authorized and directed to (i) enter into the Security Documents, (ii) enter into the Intercreditor Agreement, (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreement and (iv) perform and observe its obligations under the Security Documents and the Intercreditor Agreement.
(f) If the Company will deliver or any Subsidiary Guarantor (i) Incurs First-Priority Lien Obligations at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting First-Priority Lien Obligations entitled to the Trusteebenefit of an existing Intercreditor Agreement is concurrently retired, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered and (ii) delivers to the Collateral Agent an Officers’ Certificate so stating and copies of all documents delivered to requesting the Collateral Agent pursuant to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement in effect on the Issue Date) in favor of a designated agent or representative for the holders of the First-Priority Lien Obligations so Incurred, the Collateral DocumentsAgent 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.
Appears in 1 contract
Collateral Agent. (a) The Each Lender hereby appoints ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as the Collateral Agent agrees that it will hold hereunder, who shall act as a representative of the security interests Lenders to carry out instructions and directives of the Majority In Interest for purposes of this Security/Intercreditor Agreement and to have the other responsibility and authority set forth in this Security/Intercreditor Agreement. The Lenders’ approval of this Security/Intercreditor Agreement shall include confirmation of the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting authority of the Collateral Agent’s rights, including under this Section 17.02, to act in preservation . Grantor may rely upon the acts of the security interest in the CollateralCollateral Agent for all purposes permitted hereunder. EACH LENDER HEREBY WAIVES ANY CONFLICT OF INTEREST OF THE COLLATERAL AGENT ARISING FROM HIS SERVICE AS COLLATERAL AGENT HEREUNDER AND FROM HIS STATUS AS A LENDER HEREUNDER, and as a DIRECTOR, CHAIRMAN, CEO AND A MAJOR SHAREHOLDER OF GRANTOR. The Collateral Agent is authorized shall have full power of attorney to act in the name, place, and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 stead of the Collateral DocumentsLenders, for the creationand each of them, perfectionin all matters in connection with this Security/Intercreditor Agreement, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance approval of the Collateral, Majority In Interest or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing somay be specifically provided herein. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the The Collateral Agent’s Lien in authority to act on behalf of the CollateralLenders includes the power to execute all such documents, including waivers, amendments, and instruments as are approved by the filing of any UCC financing statements, continuation statements, Mortgages Majority In Interest or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) by this Security/Intercreditor Agreement. The Collateral Agent shall not have any no duties or obligations except those expressly as specifically set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in naturethis Security/Intercreditor Agreement. Without limiting the generality In acting on behalf of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereofMajority In Interest, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to discloserely upon, and shall not be liable for the failure protected in acting or refraining from acting upon, an opinion or advice of counsel, certificate of auditors or other certificate, statement, instrument, opinion, report, notice, request, consent, order, arbitrator’s award, appraisal, bonds, or other paper or document reasonably believed by them to disclose, any information relating be genuine and to any Note Party have been executed or any of its Affiliates that is communicated to or obtained presented by the Person serving as Collateral Agent proper party or any of its Affiliates in any capacityparties. The Collateral Agent shall not be personally liable to the Majority In Interest for any action taken taken, suffered, or not taken omitted by it with him, except for willful misconduct or gross neglect. The Collateral Agent and each Lender hereby agree that the consent or at Majority In Interest shall have the request of the Administrative Determination Holder(s), prior full and complete right and authority to the Braidwell Disposition Date, the Braidwell Holdersgive instructions to, and prior to the Deerfield Disposition Dateotherwise direct, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under respect of the circumstances as provided in the Note Documents) Collateral or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection any action with its duties expressly set forth hereinrespect to any Collateral. The Collateral Agent shall be deemed not to have knowledge by reason of this Security/Intercreditor Agreement or any other document a fiduciary relationship in respect of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or CollateralLender.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.
Appears in 1 contract
Sources: Security and Intercreditor Agreement (Mimedx Group, Inc.)
Collateral Agent. (a) The UMB Bank, National Association, is hereby appointed as Collateral Agent and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Each Holder agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated any action taken by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral Agent nor any in accordance with the provisions of their respective officersthis Indenture and the Security Documents, directors, employees, attorneys or agents will be responsible or liable for and the existence, genuineness, value or protection exercise by the Collateral Agent of any Collateralrights 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 Indenture and the Security Documents, for the legality, enforceability, effectiveness, or sufficiency duties of the Collateral DocumentsAgent shall be ministerial and administrative in nature, for and the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations responsibilities, except those expressly set forth herein and in the Note Documents other documents to which it 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 Trustee, any Holder, the Company or any Guarantor, and its duties hereunder no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be administrative in natureread into this Indenture and the Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoingforegoing sentence, the use of the term “agent” herein and in the other Note Documents this 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 and insteadapplicable 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 makes no representations as to, (2) and shall not be responsible for the existence, genuineness, value, sufficiency or condition of any of the Collateral or as to the security afforded or intended to be afforded thereby, hereby or by any Security Document, or for the validity, perfection, priority or enforceability of the Liens or security interests in any of the Collateral created or intended to be created by any of the Security Documents, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, for the validity or sufficiency of the Collateral, any Security Documents or any agreement or assignment thereof contained in any provision thereof, for the validity of the title of the Company or any Guarantor 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, all such responsibilities and obligations being responsibilities and obligations of the Company and the Guarantors. The Collateral Agent shall not have any duty responsibility for recording, registering, filing, re-recording, re-registering or refiling any supplemental indenture, financing statement, continuation statement, document, instrument or other notice in any public office at any time or times or to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the Collateral Agent shall not be required to otherwise take any action that, to perfect or maintain the perfection of any security interest granted to it under the Security Documents or otherwise (except for the safe custody of any Collateral in its opinion or possession and the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable accounting for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken moneys actually received by it with the consent hereunder or at the request under any Security Document) and such responsibility shall be solely that of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or CollateralCompany.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(fc) The Collateral Agent shall be entitled to rely uponrely, and shall not incur be fully protected in relying, upon any liability for relying uponwriting, any resolution, notice, requestconsent, certificate, consentaffidavit, letter, telegram, facsimile, certification, telephone message, statement, instrumentor other communication, document or other writing conversation (including any electronic message, Internet those by telephone or intranet website posting or other distributione- mail) believed by it to be genuine and correct and to have been signed, sent sent, or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof)Persons, and may act upon advice and statements of legal counsel (including, without limitation, counsel to the Company or any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counselGuarantor), independent accountants and other experts and advisors selected by it, and the Collateral Agent. The Collateral Agent shall not be liable for bound to make any action taken investigation into the facts or not taken by it 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 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 Company, the Trustee or the Holders of a requisite percentage in aggregate principal amount of the then outstanding Notes. This Article 10 and the provisions of each other Security Document are subject to the terms, conditions and benefits set forth in the Intercreditor Agreement. The Company and each Guarantor consents to, and agrees to be bound by, the terms of the Intercreditor Agreement, as the same may be in effect from time to time, and to perform its obligations thereunder in accordance with the advice terms thereof. Each Holder of any such counselNotes, accountants or experts.
by its acceptance of the Notes (ga) At all times when consents to the terms provided for in the Intercreditor Agreement, (b) agrees that it will be bound by, and will take no actions contrary to, the provisions of the Intercreditor Agreement and (c) authorizes and instructs the Trustee is not itself and the Collateral Agent, in each case, on behalf of each Holder of Notes to enter into the Company will deliver to Intercreditor Agreement as Second Lien Representative and as Second Lien Collateral Agent (as such terms are defined in the TrusteeIntercreditor Agreement), which shall deliver to the in each case, on behalf of such Holders of Notes. In addition, copies each Holder of all Notes authorizes and instructs the Trustee and the Collateral Documents delivered Agent to enter into any amendments or joinders to the Intercreditor Agreement, without the consent of any Holder, to add additional Indebtedness as Second Lien Debt and add other parties (or any authorized agent or trustee therefor) holding such Indebtedness thereto and to establish that the Lien on any Collateral securing such Indebtedness ranks equally with the Liens on such Collateral securing the other Second Lien Debt then outstanding. The foregoing provisions are intended as an inducement to the lenders under the Credit Agreement to extend credit to the Company and certain of its Subsidiaries, and such lenders are intended third party beneficiaries of such provisions and the provisions of the Intercreditor Agreement.
(d) In addition, to the extent required under the laws of any jurisdiction other than within the United States and for Mexican law purposes, each Holder hereby grants to the Collateral Agent a comisión mercantil con representación in accordance with Articles 273, 274 and copies any other applicable Articles of all documents delivered the Commerce Code of Mexico (Código de Comercio) to act on its behalf as its agent in connection with this Agreement and the Security Documents, and authorizes the Collateral Agent to enter into the Security Documents governed by the laws of Mexico and to hold the Liens granted to it under such documents acting on behalf of itself and for the benefit of the Second Lien Secured Parties under this Agreement to secure the Second Lien Obligations; furthermore, each Holder hereby authorizes the Collateral Agent to delegate the above mentioned comisión mercantil con representación pursuant to Article 280 and any other applicable Articles of the Commerce Code of Mexico (Código de Comercio) to the extent permitted by and under the Secured Debt Documents. Without limiting the foregoing, each Holder hereby authorizes the Collateral Agent to execute and deliver, and to perform its obligations under, each of the Security Documents to which the Collateral Agent is a party, and to exercise all rights, powers and remedies that the Collateral Agent may have under such Security Documents, provided, however, the Collateral Agent does not have an obligation to undertake any action unless directed in writing by a majority of Holders (or the Trustee acting upon direction of the same) and it has been provided indemnity and or security satisfactory to it.
Appears in 1 contract
Sources: Indenture (Ion Geophysical Corp)
Collateral Agent. (a) The Wilmington Savings Fund Society, FSB is hereby appointed as Collateral Agent and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Each Holder agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated any action taken by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral Agent nor any in accordance with the provisions of their respective officersthis Indenture and the Security Document, directors, employees, attorneys or agents will be responsible or liable for and the existence, genuineness, value or protection exercise by the Collateral Agent of any Collateralrights 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 Indenture and the Security Documents, for the legality, enforceability, effectiveness, or sufficiency duties of the Collateral DocumentsAgent shall be ministerial and administrative in nature, for and the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations responsibilities, except those expressly set forth herein and in the Note Documents other documents to which it 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 Trustee, any Holder, the Company or any Guarantor, and its duties hereunder no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be administrative in natureread into this Indenture and the Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoingforegoing sentence, the use of the term “agent” herein and in the other Note Documents this 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 and insteadapplicable 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 makes no representations as to, (2) and shall not be responsible for the existence, genuineness, value, sufficiency or condition of any of the Collateral or as to the security afforded or intended to be afforded thereby, hereby or by any Security Document, or for the validity, perfection, priority or enforceability of the Liens or security interests in any of the Collateral created or intended to be created by any of the Security Documents, 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 on the part of the Collateral Agent as determined by a court of competent jurisdiction in a final and non- appealable decision, for the validity or sufficiency of the Collateral, any Security Documents or any agreement or assignment thereof contained in any provision thereof, for the validity of the title of the Company or any Guarantor 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, all such responsibilities and obligations being responsibilities and obligations of the Company and the Guarantors. The Collateral Agent shall not have any duty responsibility for recording, registering, filing, re-recording, re-registering or refiling any supplemental indenture, financing statement, continuation statement, document, instrument or other notice in any public office at any time or times or to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the Collateral Agent shall not be required to otherwise take any action that, to perfect or maintain the perfection of any security interest granted to it under the Security Documents or otherwise (except for the safe custody of any Collateral in its opinion or possession and the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable accounting for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken moneys actually received by it with the consent hereunder or at the request under any Security Document) and such responsibility shall be solely that of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or CollateralCompany.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(fc) The Collateral Agent shall be entitled to rely uponrely, and shall not incur be fully protected in relying, upon any liability for relying uponwriting, any resolution, notice, requestconsent, certificate, consentaffidavit, letter, telegram, facsimile, certification, telephone message, statement, instrumentor other communication, document or other writing conversation (including any electronic message, Internet those by telephone or intranet website posting or other distributione-mail) believed by it to be genuine and correct and to have been signed, sent sent, or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof)Persons, and may act upon advice and statements of legal counsel (including, without limitation, counsel to the Company or any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counselGuarantor), independent accountants and other experts and advisors selected by it, and the Collateral Agent. The Collateral Agent shall not be liable for bound to make any action taken investigation into the facts or not taken by it 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 in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Security Documents in accordance with the advice a request, direction, instruction or consent of any such counsel, accountants or experts.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to or the Holders of a majority in aggregate principal amount of the then outstanding Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.
Appears in 1 contract
Collateral Agent. (a) The Trustee shall initially act as Collateral Agent agrees that it will hold the security interests and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Collateral created under Security Documents or the Collateral Documents to which it is a party as contemplated by this IndentureIntercreditor Agreement, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor neither the Collateral Agent nor any of their its respective officers, directors, employees, attorneys employees or agents will shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose collect or realize upon or otherwise enforce any of the Liens Collateral or Collateral Documents or for any delay in doing so. Neither the Trustee nor the Collateral Agent nor so or shall be under any of their respective officers, directors, employees, attorneys obligation to sell or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing otherwise dispose of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at upon the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon Person or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to the Collateral or any or all of the Liens, Collateral Documents or Collateral.
(d) part thereof. The Collateral Agent will shall be accountable only for amounts that it actually receives as a result of the enforcement exercise of such powers, and neither the Liens Collateral Agent nor any of its officers, directors, employees or Collateral Documentsagents shall be responsible for any act or failure to act hereunder, except for its own willful misconduct, gross negligence or bad faith.
(eb) In acting The Trustee, as Collateral Agent hereunder Agent, is authorized and directed to (i) enter into the Security Documents, (ii) enter into the Intercreditor Agreement, (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreement and (iv) perform and observe its obligations under the Security Documents and the Intercreditor Agreement.
(c) If the Issuers (i) Incur First-Priority Lien Obligations at any time when no intercreditor agreement 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, and (ii) delivers to the Collateral DocumentsAgent an Officers’ Certificate so stating and requesting the Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement in effect on the Combinations Date) in favor of a designated agent or representative for the holders of the First-Priority Lien Obligations so Incurred, the Collateral Agent shall be entitled to conclusively rely upon (and enforce each is hereby authorized and all of directed to) enter into such intercreditor agreement, bind the rights, privileges, immunities, indemnities and benefits of Holders on the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements terms set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone therein and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), perform and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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 expertsobserve its obligations thereunder.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.
Appears in 1 contract
Collateral Agent. (a) The Collateral Agent Section 10.1 Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or authorized to act for, any other Lender. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and not investments in a business enterprise or securities.
Section 10.2 Each Lender, by signing this Agreement (i) represents that it will hold the security interests is engaged in making, acquiring or holding commercial loans in the Collateral created under the Collateral Documents ordinary course of its business and has, independently and without reliance upon any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to which it is enter into this Agreement as a party as contemplated by this IndentureLender, and any and all proceeds thereofto make, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation acquire or hold its portion of the security interest in the Collateral. The Collateral Agent is authorized Loan hereunder and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, (ii) expressly acknowledges that no collateral agent hereunder shall be personally liable by reason of any act or omission of neither any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral Agent Lender nor any of their its respective officers, directors, employees, agents, attorneys in fact have made any representations or agents will be responsible or liable for the existencewarranties to it and that no act by any other Lender hereafter taken, genuineness, value or protection of including any Collateral, for the legality, enforceability, effectiveness, or sufficiency review of the Collateral Documentsaffairs of a Relevant Party, for shall be deemed to constitute any representation or warranty by any Lender. Each Lender shall, independently and without reliance upon any other Lender and based on such documents and information (which may contain material, non-public information within the creationmeaning of the United States securities laws concerning a Borrower and its Affiliates) as it shall from time to time deem appropriate, perfectioncontinue to make its own decisions in taking or not taking action under or based upon this Agreement, priority, sufficiency any related agreement or protection of any Lien, including not being responsible for payment of any Taxes, charges document furnished hereunder or assessments upon the Collateral thereunder and in deciding whether or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents extent to which it is will continue as a partylender or assign or otherwise transfer its rights, interests and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoingobligations hereunder.
Section 10.3 U.S. Bank Trust Company, (1) the National Association has been appointed Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless for the benefit of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in the other Note Documents with reference Lenders hereunder pursuant to the Collateral Agent Agency Agreement. It is not intended to connote expressly understood and agreed by the parties hereto that any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law and 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, (2) the authority conferred upon Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, hereunder is subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the Collateral Agent shall not be required to take any action that, in its opinion or the opinion delegation of its counsel, may expose the Collateral Agent to liability or that is contrary to any Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been authority made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior Lenders to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral DocumentsAgency Agreement, and that Collateral Agent has agreed to act (and any successor Collateral Agent shall act) as such hereunder only on the express conditions contained in the Collateral Agency Agreement (including the rights and protections of Collateral Agent thereunder). Any successor Collateral Agent appointed pursuant to the Collateral Agency shall be entitled to all the rights, interests and benefits of Collateral Agent hereunder.
Appears in 1 contract
Collateral Agent. (a) The Collateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party Trustee shall initially act as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or and is authorized to appoint co-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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay necessary in doing soits sole discretion. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations obligations, except those expressly set forth in this Indenture, the Note Security Documents to which it is a party, and its duties hereunder shall be administrative in naturethe Intercreditor Agreement. Without limiting the generality of the foregoing, except as otherwise explicitly provided in this Indenture or in the Security Documents, neither the Collateral 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 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. Notwithstanding anything to the contrary in any Security Document, (1i) the Collateral Agent shall not be subject required to exercise any fiduciary right or other implied duties, regardless of whether a Default or Event of Default has occurred remedy available to it under such Security Document and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2ii) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents thatin each case, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as unless the Collateral Agent shall believe in good faith have been directed to be necessarydo so by the Trustee (or, under the circumstances as provided in the Note Documents); provided that if the Collateral Agent shall not also be required to take any action thatthe Trustee, by Holders of at least a majority in its opinion or principal amount of the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacitySecurities then outstanding). The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement exercise of such powers, and neither the Liens Collateral Agent nor any of its officers, directors, employees or Collateral Documentsagents shall be responsible for any act or failure to act hereunder, except for its own willful misconduct, gross negligence or bad faith.
(eb) In acting as Each Holder, by its acceptance of this Indenture and the Securities, (i) irrevocably appoints the Collateral Agent hereunder as its agent and authorizes and directs the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms of the Security Documents and the Intercreditor Agreement, together with such actions and powers as are reasonably incidental thereto, and (ii) authorizes and directs the Collateral Agent, without any further consent, authorization or other action by such Holder, (A) to enter into the Security Documents and the Intercreditor Agreement, and any amendment of any of the foregoing (including, in the case of the Intercreditor Agreement, any modifications thereof expressly contemplated by Section 5.07 thereof) that is permitted under this Indenture, (B) to bind such Holder to the provisions of the Security Documents and the Intercreditor Agreement and (C) to perform and observe its obligations under the Security Documents and the Intercreditor Agreement.
(c) If the Company (i) Incurs Indebtedness constituting Credit Agreement Obligations at any time when no Intercreditor Agreement is in effect or at any time when Indebtedness constituting Credit Agreement Obligations entitled to the benefit of an existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Collateral DocumentsAgent 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 be entitled to conclusively rely upon (and enforce each is hereby authorized and all of directed to) enter into such Intercreditor Agreement, bind the rightsHolders on the terms set forth therein, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” perform and any references to “negligence” shall be references to “gross negligence”observe its obligations thereunder.
(fd) The Collateral Agent shall be entitled have the benefit of the provisions of Article 7 with respect to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants and other experts selected by it, and shall not be liable for any action taken or not all actions taken by it in accordance with the advice of pursuant to this Section or any such counsel, accountants or experts.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver Security Document to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documentsfull extent thereof.
Appears in 1 contract
Sources: Indenture (Novamerican Steel Inc.)
Collateral Agent. (a) The Guarantor hereby irrevocably appoints the Collateral Agent agrees that it will hold the security interests in as its agent under this Agreement and authorizes the Collateral created under the Collateral Documents Agent to which it is a party take such actions on its behalf and to exercise such powers as contemplated are delegated to such Agent by this IndentureAgreement, together with such actions and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateralpowers as are reasonably incidental thereto. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; providedacknowledges the Guaranty Agreement, however, with the understanding that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral Agent nor any of their respective officersassumes no obligations under the Guaranty Agreement, directors, employees, attorneys or agents will and shall not be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing sothereunder. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral No Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in natureherein. Without limiting the generality of the foregoing, (1a) the Collateral no Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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 partiescontinuing, (2b) the Collateral no Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral hereby and that such Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior Guarantor and for which the Agent is indemnified to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Lawssatisfaction, and (3c) except as expressly set forth in the Note Documents to which it is a partyherein, the Collateral no Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates the Borrower that is communicated to or obtained by the Person serving as Collateral Agent or any of its their Affiliates in any capacity. The Collateral No Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) Guarantor or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth hereinmisconduct. The Collateral No Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” given to such Agent by the Borrower or the Guarantor at its Corporate Trust Office and describing such Default or referencing this Agreement and specifying the Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(s), and prior no Agent shall be responsible for or have any duty to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required ascertain or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in this Agreement, other than to act upon directions purported confirm receipt of any items expressly required to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) . 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 (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, signed or sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof)Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof)Person, and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counselcounsel (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 and all its duties and exercise its rights and powers by or through any one or more sub-agents (gincluding any branch, other office, Affiliate or nominee of such Agent) At appointed by such Agent. The Collateral Agent and any such sub-agent 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 and to the Related Parties of the Agents and any such sub-agent, and shall apply to their respective activities in connection with their activities as Agent. The Collateral Agent shall not be liable for negligence by an agent appointed with due care. The Collateral Agent may resign at any time by notifying the Guarantor and the Borrower. Upon any such resignation, the Guarantor shall have the right to appoint a successor and, except if an Event of Default shall have occurred and be continuing at the time of such resignation, that is reasonably satisfactory to the Borrower, provided that, if the Borrower shall fail to provide its consent to any successor proposed to the Borrower in writing by the Guarantor within ten days after receipt of such proposal, such successor shall be deemed to be reasonably satisfactory to the Borrower. The Collateral Agent’s resignation shall not be effective until a successor Collateral Agent shall have been appointed by the Guarantor and shall have accepted such appointment; provided that, if no such successor shall have been so appointed by the Guarantor 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 Guarantor appoint a successor Collateral Agent meeting the qualifications set forth above, or petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or retired) Agent, and the retiring Agent, shall be discharged from its duties and obligations hereunder (if not already discharged therefrom as provided above in this paragraph). The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent’s resignation hereunder, the provisions of this Section shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Agent. The Guarantor acknowledges that it has, independently and without reliance upon the Collateral Agent and based on such documents and information as it has deemed appropriate, made its own decision to enter into this Agreement. The Guarantor also acknowledges that it will, independently and without reliance upon the Collateral Agent and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent 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 when or otherwise perfecting or maintaining the Trustee perfection of any security interest in the Collateral. The Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which other collateral agents accord similar property. The Collateral Agent shall not itself be liable or responsible for any loss or diminution in the value of any of the Collateral, including 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. The Collateral Agent shall not be responsible for: (i) the existence, genuineness or value of any of the Collateral, (ii) 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, bad faith or willful misconduct on the part of the Collateral Agent, (iii) the Company will deliver validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iv) the validity of the title of the Borrower to the TrusteeCollateral, which shall deliver (v) insuring the Collateral, (vi) the payment of taxes, charges, assessments or Liens upon the Collateral, (vii) filing of financing or continuation statements or (viii) otherwise as to the Holders maintenance of Notesthe Collateral. The Collateral Agent shall have no duty to ascertain or inquire as to the performance or observance of any of the terms of this Agreement by other parties to this Agreement or related transaction documents. The Collateral Agent shall not be liable for any action taken, copies suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement. The Collateral Agent shall not be deemed to have notice of all any Event of Default unless the Collateral Documents delivered Agent has received written notice of any event that constitutes an Event of Default at the Corporate Trust Office, and such notice references this Agreement. The rights, privileges, protections, immunities and benefits given to the Collateral Agent, including its right to be indemnified, are extended to, and shall be enforceable by, the Collateral Agent in each of its capacities hereunder, and each officer, director, employee, and agent, custodian and other Person employed to act hereunder. The Collateral Agent may request that the Borrower 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. Any power conferred on the Collateral Agent to enforce remedies is permissive and, unless instructed by the Guarantor pursuant to the terms hereof, shall not be deemed to be a duty, rather than a right. The Collateral Agent shall not have any duty to exercise any remedy if it has not been directed in writing to do so by the Guarantor and provided with an indemnity reasonably satisfactory to it. The Collateral Agent shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the request or direction of the Guarantor pursuant to this Agreement, unless the Guarantor shall have offered to the Collateral Agent and copies of all documents delivered security or indemnity satisfactory to the Collateral Agent pursuant to against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction. In no event shall the Collateral DocumentsAgent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God. Nothing herein shall require the Collateral Agent to expend or risk its own funds, unless appropriate indemnities are provided hereunder. Each party agrees that the Guarantor may appoint other Agents with (so long as no Event of Default shall have occurred and be continuing) the prior written consent of the Borrower, not to be unreasonably withheld or delayed.
Appears in 1 contract
Sources: Pledge and Security Agreement (Petersen Energia Inversora, S.A.)
Collateral Agent. The Purchasers hereby appoint (aor confirm the continued appointment of) The Tail Wind Fund Ltd. as “Collateral Agent agrees that it will hold the security interests in the Collateral created Agent” under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the CollateralMortgage. The Collateral Agent is authorized may be removed, and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the a successor Collateral Agent nor may be appointed, by a majority-in-interest of holders of the Notes, and any Collateral Agent may resign from such position upon thirty days prior notice to the Company (which shall constitute notice to the Operating Subsidiary) and the holders of their respective officersNotes. If a successor Collateral Agent does not take such position within 30 days after the retiring Collateral Agent resigns or is removed, directors, employees, attorneys the retiring Collateral Agent or agents will be responsible or liable a majority-in-interest of the holders of the Notes may petition any court of competent jurisdiction for the existence, genuineness, value or protection appointment of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the a successor Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) . The Collateral Agent shall not have will act or refrain from acting based on the direction of a majority-in-interest of holders of the Notes, and may take any duties action or obligations except those expressly set forth refrain from taking any action as provided in the Note Documents to which Mortgage as it is a party, shall determine in its reasonable judgment and its duties hereunder shall be administrative in naturediscretion. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject With respect to any fiduciary monies or other implied dutiesproperty held by, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereofexpended by, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage on behalf of the Holders as holders of the Notes, such amounts shall be necessary, or as allocated pro rata based on the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the Collateral Agent shall not be required to take any action that, in its opinion or the opinion principal amount of its counsel, may expose the Collateral Agent to liability or that is contrary to any Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth hereinNotes outstanding. The Collateral Agent shall be deemed not to have knowledge reimbursed by the holders of Notes for all reasonable expenses incurred in connection with acting as Collateral Agent under the Mortgage (provided that this shall in no way affect any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer liability of the Collateral Agent by Operating Subsidiary or the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by under the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this IndentureMortgage). The Collateral Agent will be subject may refuse to such directions as may be given perform any duty or exercise any right or power unless it receives indemnity satisfactory to it by the Trustee against any loss, liability or expense. No implied covenants or obligations shall be read into this Agreement or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture)Mortgage against Collateral Agent. Except as directed by the Administrative Determination Holder(s)for Collateral Agent's own willful misconduct, prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required bad faith or permitted by this Indenture and any other representatives, and only if indemnified to its satisfactiongross negligence, the Collateral Agent will not be obligated:
(i) to may rely and/or act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, written instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) request believed by it the Collateral Agent in good faith to be genuine and to have been signed, sent or otherwise authenticated be executed and delivered by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereofperson(s), and may act upon any such statement prior to receipt of written confirmation assume in good faith the authenticity, validity and effectiveness thereof and shall not incur be obligated to make any liability for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants investigation or determination as to the truth and other experts selected by itaccuracy of any information contained therein, and (ii) shall not be liable responsible for any action taken the acts or not taken by it in accordance with omissions of the advice other parties hereto or holders of any such counsel, accountants or experts.
(g) At all times when Notes. In consideration of its acceptance of the Trustee is not itself appointment as the Collateral Agent, each of the Company will deliver Purchasers (and any subsequent holder of the Notes) jointly and severally agree to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to indemnify the Collateral Agent against, and copies of all documents delivered to hold the Collateral Agent pursuant to harmless from, all costs, damages, expenses (including reasonable attorney's fees and disbursements) and liabilities that the Collateral DocumentsAgent may incur or sustain in connection with serving as Collateral Agent under the Mortgage, unless such costs, damages, expenses and liabilities are caused by the Collateral Agent's own willful misconduct, bad faith or gross negligence.
Appears in 1 contract
Sources: Purchase Agreement (Nexmed Inc)
Collateral Agent. (a) The Collateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, and any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth herein and in the Note Collateral Documents to which it the Collateral Agent is a party, and its duties hereunder and thereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or default, Event of Default, Specified Event of Default or Enforcement has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in the other Note Documents with reference to the Collateral Agent is not intended to connote any fiduciary or other implied continuing;
(or expressii) obligations arising under agency doctrine of any Applicable Law and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated hereby or by the Note Collateral Documents that, subject to which the terms hereof, Collateral Agent is as party that the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders Required Senior Lenders (or such other number or percentage of the Holders Senior Lenders as shall be necessary, expressly provided for herein or as in the Collateral Agent shall believe in good faith to be necessary, under the circumstances as provided in the Note Documents); provided that the 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 this Agreement or any Note Collateral Document or Applicable Lawsapplicable law, and including for the avoidance of doubt any action that may be in violation of the automatic stay under any debtor relief law; and
(3iii) shall not, except as expressly set forth herein and in the Note Collateral Documents to which it the Collateral Agent is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, in its capacity as Collateral Agent, any information relating to any Note Party the Loan Parties or any of its their Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in Affiliates.
(b) Notwithstanding any capacity. The other provision of this Agreement or the Collateral Documents, the Collateral Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request or direction of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders Required Senior Lenders (or such other number or percentage of the Holders Senior Lenders as shall be necessary, expressly provided for herein or as in the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or (ii) in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth hereinjurisdiction by final and nonappealable judgment. The Collateral Agent shall be deemed not to have knowledge of any Default or default, Event of Default Default, Specified Event of Default, Sharing Event or Enforcement unless and until written notice thereof (describing such occurrence is given to a responsible officer of the Collateral Agent within Corporate Trust Services in writing by a Senior Lender or the Bank Agent referring to this Agreement, describing such occurrence and stating that it such notice is a “notice of default” and describing such Default or “notice of enforcement.”
(c) 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 this Agreement or any Collateral Document, (ii) the contents of any certificate, report or other document delivered hereunder or under any Collateral Document or in connection herewith or therewith, (iii) the performance or observance by any person other than the Collateral Agent of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any default, Event of Default, Specified Event of Default or Enforcement, (iv) is given to a Responsible Officer the validity, enforceability, effectiveness or genuineness of this Agreement, any Collateral Document or any other agreement, instrument or document or (v) the terms or provisions of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, Loan Documents or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Note Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) Each Senior Lender and the Bank Agent authorizes and directs the Collateral Agent to enter into the Collateral Documents to which it is a party on the date hereof on behalf of and for the benefit of the Secured Parties.
(e) The Collateral Agent will shall never be accountable only for amounts that it actually receives as a result required to use, risk or advance its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties or the enforcement exercise of any of its rights and powers under this Agreement or the Liens or Collateral Documents.
(ef) In acting no event shall the Collateral Agent be liable for any consequential, indirect, punitive or special loss or damage of any kind whatsoever (including loss of profit) relating to its performance of its duties under this Agreement or any Collateral Document irrespective of whether the Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(g) In no event shall the Collateral Agent be responsible or 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, terrorist attacks or other disasters.
(h) Delivery of reports, documents and other information to the Collateral Agent is for informational purposes only and the Collateral Agent’s receipt of the foregoing shall not constitute constructive knowledge of any event or circumstance or any information contained therein or determinable from information contained therein. Information contained in notices, reports or other documents delivered to the Collateral Agent and other publicly available information shall not constitute actual or constructive knowledge.
(i) Knowledge of or notices or other documents delivered to ▇▇▇▇▇ Fargo Bank, National Association in any capacity other than as Collateral Agent hereunder shall not constitute knowledge of or delivery to ▇▇▇▇▇ Fargo Bank, National Association in its capacity as Collateral Agent under this Agreement or the Collateral Documents. Knowledge of or notices or other documents delivered to ▇▇▇▇▇ Fargo Bank, National Association in any capacity other than as Bank Agent or Senior Lender hereunder shall not constitute knowledge of or delivery to ▇▇▇▇▇ Fargo Bank, National Association in its capacity as Bank Agent or Senior Lender under this Agreement or the Collateral Documents.
(j) Notwithstanding any provision of this Agreement or any Collateral Document to the contrary, (i) before taking or omitting any action to be taken or omitted by the Collateral Agent hereunder or thereunder, the Collateral Agent may seek the written direction of the Required Senior Lenders (which written direction may be in the form of an email), and the Collateral Agent shall be entitled to rely (and is fully protected in so relying) upon such direction and (ii) whenever reference is made herein or in any Collateral 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 the Collateral Agent shall be acting at the direction of the Required Senior Lenders and shall be fully protected in acting pursuant to such directions. The Collateral Agent is not liable with respect to any action taken or omitted to be taken by it in accordance with any such direction. If the Collateral Agent requests any such direction, the Collateral Agent shall be entitled to refrain from such action unless and until the Collateral Agent has received such direction, and the Collateral Agent shall not incur liability to any Person by reason of so refraining. In the absence of an express statement in this Agreement or the Collateral Documents regarding which Senior Lenders shall direct in any circumstance, the direction of the Required Senior Lenders shall apply and be sufficient for all purposes. If the Collateral Agent requests, it must first be indemnified to its reasonable satisfaction by the Loan Parties or the Senior Lenders against any and all fees, losses, liabilities and expenses which may be incurred by the Collateral Agent by reason of taking or continuing to take, or omitting, any action directed by any Senior Lender. Any provision of this Agreement or the Collateral Documents authorizing the Collateral Agent to take any action shall not obligate the Collateral Agent to take such action.
(k) If at any time the Collateral Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process (including, but not limited to, orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Collateral), the Collateral Agent is authorized to comply therewith in any manner as it or legal counsel selected by it with due care deems appropriate; and if the Collateral Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, the Collateral Agent shall not be liable to any of the parties hereto or to any other Person even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
(l) Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under pursuant to, the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and have all of the rights, privileges, immunities, indemnities and benefits other protections granted to it under this Agreement (in addition to those that may be granted to it under the terms of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”other agreement or agreements).
(fm) Each party agrees and acknowledges that ▇▇▇▇▇ Fargo Bank, National Association is acting in separate and distinct roles and capacities under this Agreement and the Collateral Documents. In no event shall ▇▇▇▇▇ Fargo Bank, National Association in any role or capacity have any duty or liability for any other role or capacity.
(n) 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 (including any electronic message, Internet or intranet website posting or other distribution) reasonably believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof)Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and reasonably believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof)Person, and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants and other experts selected by itit with due care, 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.
(go) At The Collateral Agent may perform any and all times when of its duties and exercise its rights and powers hereunder or under any Collateral Document by or through any one or more sub agents appointed by the Trustee is Collateral Agent. The exculpatory provisions of this Section 25 shall apply to any such sub agent. The Collateral Agent shall not itself be responsible for the action or inaction or the supervision, negligence or misconduct of any sub-agents that it selects with due care.
(p) The Collateral Agent may at any time (i) give notice of its resignation to the Bank Agent and the Noteholders or (ii) be removed upon the written request of the Required Senior Lenders sent to the Collateral Agent and the other Senior Lenders. Upon receipt of any such notice of resignation or the removal of the Collateral Agent, the Company will deliver Required Senior Lenders shall appoint a successor Collateral Agent; provided that such successor Collateral Agent is a bank or trust company having capital, surplus and undivided profits of at least $250,000,000; provided further that, if at any time after the resignation or removal of the Collateral Agent and prior to the Trusteeappointment of a successor Collateral Agent by the Required Senior Lenders the Collateral Agent, which the Requisite Lenders or the Required Holders notify the others that one of the Persons listed on Schedule 25(p) hereto has agreed to serve as successor Collateral Agent on the terms set forth in this Agreement, then the Required Senior Lenders shall deliver be deemed to have agreed to the Holders appointment of Notessuch Person as successor Collateral Agent and shall enter into such documentation as is reasonably necessary to evidence such appointment. No resignation or removal of the Collateral Agent shall become effective until a successor Collateral Agent shall have been selected as provided herein and shall have assumed in writing the obligations of the Collateral Agent hereunder and under the Collateral Documents. In the event that a successor Collateral Agent shall not have been selected as provided herein or shall not have assumed such obligations within 30 days after the resignation or removal of the Collateral Agent, copies then the Collateral Agent may apply to a court of competent jurisdiction for the appointment of a successor Collateral Agent (at the sole cost and expense of the Loan Parties). Upon the acceptance of a successor’s appointment as Collateral Agent hereunder, the retiring Collateral Agent shall assign all of the liens upon and security interests in all Collateral Documents delivered under this Agreement and the Collateral Documents, and all right, title and interest of the Collateral Agent under this Agreement and all the Collateral Documents, to the successor Collateral Agent, without recourse to the Collateral Agent or any Senior Lender and copies at the sole expense of the Loan Parties, and such successor Collateral Agent shall succeed to and become vested with all documents delivered of the rights, powers, privileges and duties of the retiring Collateral Agent (other than any rights to indemnity or other payments owed to the retiring Collateral Agent), and the retiring Collateral Agent shall be discharged from all of its duties and obligations hereunder or under the Collateral Documents. After the retiring Collateral Agent’s resignation or removal hereunder, the provisions of this Section 25 and Sections 2(c), 2(d), 2(e) and 2(f) shall continue in effect for the benefit of such retiring Collateral Agent in respect of any actions taken or omitted to be taken by it while the retiring Collateral Agent was acting as Collateral Agent. Any Person into which the Collateral Agent 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 the business of the Collateral Agent shall be the successor of the Collateral Agent hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto, except where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.
(q) The Collateral Agent shall not have any obligation whatsoever to assure that the Collateral exists or is owned (whether in fee or by leasehold) by the Person purporting to own it or is cared for, protected, or insured or has been encumbered or that the Liens granted to the Collateral Agent herein or pursuant to the Collateral Documents have been properly or sufficiently or lawfully created, perfected, protected, or enforced, or are entitled to any particular priority. Notwithstanding anything contained in this Agreement or the Collateral Documents or otherwise to the contrary, the Collateral Agent shall not have any duty to (i) file or prepare any financing or continuation statements or record any documents or instruments in any public office for purposes of creating, perfecting or maintaining any Lien or security interest created under the Collateral Documents.; (ii) take any necessary steps to preserve rights against any parties with respect to any Collateral (except as directed by the Required Senior Lenders in accordance with this Agreement); or (iii) take any action to protect against any diminution in value of the
Appears in 1 contract
Sources: Note and Guarantee Agreement (Sunstone Hotel Investors, Inc.)
Collateral Agent. (a) The Except for action expressly required of the Collateral Agent agrees that it will hold the security interests in hereunder or under any other Credit Document, the Collateral created under Agent shall in all cases be fully justified in refusing to act hereunder and thereunder unless it is further indemnified to its satisfaction by the Lenders and the Hedge Banks, proportionately in accordance with the Obligations then due and payable to each of them, against all liability and expense that may be incurred by the Collateral Documents Agent by reason of taking or continuing to which it is a party take any such action.
(b) Except as contemplated by this Indenture, and expressly provided herein or in any and all proceeds thereof, for the benefit ofother Credit Document, the Secured Parties, without limiting Collateral Agent shall have no duty to take any affirmative steps with respect to the Collateral Agent’s rights, including under this Section 17.02, to act collection of amounts payable in preservation respect of the security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents shall incur no liability as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason a result of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral 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 Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance private sale of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in Lenders and the Note Documents to which it is a partyHedge Banks hereby consent, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) agree upon written request by the Collateral Agent shall not be subject to any fiduciary or execute and deliver such instruments and other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in 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 and 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, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or documents as the Collateral Agent shall believe in good faith may deem desirable to be necessaryconfirm such consent, under to the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Laws, and (3) except as expressly set forth in the Note Documents to which it is a party, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request release of the Administrative Determination Holder(s)Liens on the Collateral, prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, including any release in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default sale, transfer or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer other disposition of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by part thereof, in accordance with the Trustee, or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Credit Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will shall be accountable only for amounts that it actually receives as a result deemed to have exercised reasonable care in the custody and preservation of the enforcement Collateral in its possession if the Collateral is accorded treatment substantially equal to that the Collateral Agent accords its own similar property, it being understood that neither the Collateral Agent nor any Lender or Hedge Bank shall have responsibility for (i) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Collateral, whether or not the Collateral Agent or any Lender or Hedge Bank is deemed to have knowledge of the Liens such matters, or Collateral Documents(ii) taking any necessary steps to preserve rights against any parties with respect to any Collateral.
(e) In acting as The Collateral Agent hereunder shall have, with respect to the Hedge Banks, the duties and under responsibilities expressly set forth in this Agreement and the Collateral other Credit Documents, and no others, and the Collateral Agent shall not by reason of this Agreement or any other Credit Document be entitled to conclusively rely upon and enforce each and all of the rightsan agent or a trustee for, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that or have any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying uponfiduciary obligation to, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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 expertsHedge Bank.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.
Appears in 1 contract
Sources: Revolving Credit Agreement (Frontier Oil Corp /New/)
Collateral Agent. (a) The Collateral Agent Section 10.1 Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or authorized to act for, any other Lender. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and not investments in a business enterprise or securities.
Section 10.2 Each Lender, by signing this Agreement (i) represents that it will hold the security interests is engaged in making, acquiring or holding commercial loans in the Collateral created under the Collateral Documents ordinary course of its business and has, independently and without reliance upon any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to which it is enter into this Agreement as a party as contemplated by this IndentureLender, and any and all proceeds thereofto make, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act in preservation acquire or hold its portion of the security interest in the Collateral. The Collateral Agent is authorized Loan hereunder and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, (ii) expressly acknowledges that no collateral agent hereunder shall be personally liable by reason of any act or omission of neither any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral Agent Lender nor any of their its respective officers, directors, employees, agents, attorneys in fact have made any representations or agents warranties to it and that no act by any other Lender hereafter taken, including any review of the affairs of a Relevant Party, shall be deemed to constitute any representation or warranty by any Lender. Each Lender shall, independently and without reliance upon any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder and in deciding whether or to the extent to which it will be responsible continue as a lender or liable assign or otherwise transfer its rights, interests and obligations hereunder.
Section 10.3 U.S. Bank Trust Company, National Association has been appointed Collateral Agent for the existencebenefit of Lenders hereunder pursuant to the Collateral Agency Agreement. It is expressly understood and agreed by the parties hereto that any authority conferred upon Collateral Agent hereunder is subject to the terms of the delegation of authority made by Lenders to Collateral Agent pursuant to the Collateral Agency Agreement, genuinenessand that Collateral Agent has agreed to act (and any successor Collateral Agent shall act) as such hereunder only on the express conditions contained in the Collateral Agency Agreement (including the rights and protections of Collateral Agent thereunder). Any successor Collateral Agent appointed pursuant to the Collateral Agency shall be entitled to all the rights, value or protection interests and benefits of Collateral Agent hereunder.
Section 10.4 Collateral Agent is a “representative” of Lenders within the meaning of the term “secured party” as defined in the UCC. ▇▇▇▇▇▇▇ hereby authorize and direct Collateral Agent to enter into each of the Collateral Documents and the other Loan Documents and to take all action contemplated by such documents. Lenders agree that they shall not have the right individually to seek to realize upon the security granted by any CollateralCollateral Document, it being understood and agreed that such rights and remedies may be exercised solely by Collateral Agent (for the legality, enforceability, effectiveness, or sufficiency benefit of Lenders) upon the terms of the Collateral Documents, . In the event that any Collateral is hereafter pledged by any Person as collateral security for the creationObligations, perfection, priority, sufficiency or protection pursuant to the terms of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral Agency Agreement, Collateral Agent shall be authorized, and shall be granted a power of attorney, to execute and deliver on behalf of Lenders any Collateral Documents necessary or otherwise appropriate to grant and perfect a Lien on such Collateral in favor of Collateral Agent on behalf of Lenders. Lenders have authorized Collateral Agent to release any Lien granted to or held by Collateral Agent upon any Collateral (i) as to expressly described herein; (ii) as permitted by, but only in accordance with, the maintenance terms of the Collateralapplicable Loan Document; or (iii) if approved, authorized or for ratified in writing by the Required Lenders (unless such release is required to be approved by all of Lenders hereunder). Upon request by Collateral Agent at any defect time, ▇▇▇▇▇▇▇ will confirm in writing Collateral Agent’s authority to release particular types or deficiency items of Collateral pursuant hereto. The parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written. MLIC LENDER: METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation By: MetLife Investment Management, LLC, its investment manager By: Name: ▇▇▇▇▇▇▇ ▇▇▇▇ Its: Authorized Signatory MTLIC LENDER: METROPOLITAN TOWER LIFE INSURANCE COMPANY, a Nebraska corporation By: MetLife Investment Management, LLC, its investment manager By: Name: ▇▇▇▇▇▇▇ ▇▇▇▇ Its: Authorized Signatory BORROWER: VB TEN, LLC, a Delaware limited liability company By: Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Authorized Signatory Each of the undersigned Equity Owner and Parent hereby joins in the execution and delivery of this Agreement and hereby:
(a) represents and warrants that each of the representations and warranties set forth in the Loan Agreement and each other Loan Document and applicable to any such matters, or for any failure it is true and correct as of the date hereof; and
(b) agrees to demand, collect, foreclose or realize upon or otherwise enforce be bound by all of the covenants and agreements set forth in Article V of the Loan Agreement and each other Loan Document applicable to it. The existence and provisions of this Joinder shall in no event be interpreted to imply recourse against any of the Liens Equity Owner or Collateral Parent under the Loan Documents except as otherwise explicitly set forth in the Loan Documents. EQUITY OWNER: VB TEN EQUITY, LLC, a Delaware limited liability company By: Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Authorized Signatory PARENT: VINEBROOK HOMES TRUST, INC., a Maryland corporation By: Name: ▇▇▇▇▇ ▇▇▇▇▇ Title: President
(a) Borrower shall obtain and maintain, at its sole cost and expense for the term of this Agreement or any delay cause to be maintained, insurance for Borrower and the Properties providing at least the following coverages:
(i) comprehensive “all risk” or special causes of loss form insurance, as is available in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection insurance market as of the Collateral Agent’s Lien Closing Date, on the Properties (A) in an amount equal to one hundred percent (100%) of the Collateral“full replacement cost”, including which for purposes of this Agreement means actual replacement value of the filing of any UCC financing statementsProperties, continuation statements, Mortgages or any filings subject to a loss limit equal to Fifty Million and No/100ths Dollars ($50,000,000.00) per occurrence; (B) containing an agreed amount endorsement with respect to the U.S. Patent Improvements and Trademark Office personal property at any Property waiving all co insurance provisions or U.S. Copyright Office.
to be written on a no co insurance form and (cC) The Collateral Agent shall not have any duties or obligations except those expressly set forth providing for no deductible in the Note Documents to which excess of Twenty-Five Thousand and No/100ths Dollars ($25,000.00) (it is a partybeing understood that, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a so long as no Default or Event of Default has occurred and is continuing and, without limiting (1) Borrower may utilize a Three Million and No/100ths Dollars ($3,000,000.00) aggregate deductible stop loss subject to a Twenty-Five Thousand and No/100ths Dollars ($25,000.00) per occurrence deductible and a Twenty-Five Thousand and No/100ths Dollars ($25,000.00) maintenance deductible following the generality exhaustion of the foregoing, the use of the term “agent” herein and in 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 and 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 partiesaggregate, (2) the Collateral Agent aggregate stop loss does not apply to any losses arising from named windstorm, earthquake or flood, (3) the perils of named windstorm and the peril of “other wind and hail” shall not be permitted to have a minimum deductible of One Hundred Thousand and No/100ths Dollars ($100,000.00) per occurrence for any duty to take any discretionary action or exercise any discretionary powersand all affected Properties, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject permitted minimum deductible for the named windstorm peril shall be permitted to the terms hereof, the Collateral Agent is required to exercise as directed (a) have a per occurrence deductible in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders certain Tier 1 locations in Texas of three percent (or such number or percentage 3.0%) of the Holders as shall be necessarytotal insurable value of the affected Properties, or as (b) have a per occurrence deductible for properties in Florida of five percent (5.0%) of the Collateral Agent shall believe in good faith to be necessary, under total insurable value of the circumstances as provided in the Note Documents); provided that the 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 Note Document or Applicable Lawsaffected Properties, and (3c) except as expressly set forth have a per occurrence deductible in certain Tier 1 locations from Georgia to Virginia of two percent (2.0%) of the Note Documents to which it is total insurable value of the affected Properties (each with a party, the Collateral Agent shall not have any duty to disclose, minimum deductible of One Hundred Thousand and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable No/100ths Dollars ($100,000.00) per occurrence for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, or the Administrative Determination Holder(sall affected Properties), and prior (4) the perils of flood shall be permitted to have a minimum deductible of Fifty Thousand and No/100ths Dollars ($50,000.00) for any and all affected Properties, except that the Braidwell Disposition Dateperils of special flood shall be permitted to have a minimum of Two Hundred Fifty Thousand and No/100ths Dollars ($250,000.00) per occurrence for any and all affected Properties, In addition, Borrower shall obtain (x) flood insurance in an amount equal to Five Million and No/100ths Dollars ($5,000,000.00) applying per occurrence and in the Braidwell Holdersaggregate, and prior (y) with respect to named storm insurance the Deerfield Disposition Date, greater of (1) the Deerfield Holders, as applicable, from time to time amount of coverage in place on the Closing Date and (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by 2) the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
greater of (i) coverage in an amount equal to act the Probable Maximum Loss (PML) or Scenario Expected Limit (SEL) based upon directions purported a storm risk analysis for a 475 year event for the entire portfolio at risk or (ii) one hundred percent ( 100%) of Gross Loss Probable Maximum Loss (Gross Loss PML) or Scenario Expected Limit (SEL) based upon a storm risk analysis for a 10,000-year event for the entire portfolio at risk (such analysis to be delivered secured by Borrower using a third-party firm qualified to it perform such named storm risk analysis using the most current RMS software, or its equivalent, to include consideration of storm surge, if applicable, and loss amplification, at the expense of Borrower at least two (2) times per year or more frequently as may reasonably be requested by Required Lenders and shared with all Lenders); provided, that such flood, earth movement and named storm insurance shall otherwise be on terms consistent with the comprehensive all risk insurance policy required under this Section (a)(i). In addition, Borrower shall obtain the flood insurance coverage described in subclause (x) above for a Property if any Personportion of such Property is currently or at any time in the future located in a federally designated “special flood hazard area,” flood hazard insurance or its equivalent in an amount equal to the maximum amount of such insurance available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended;
(ii) business income or rental loss insurance, written on an “Actual Loss Sustained Basis” (A) with loss payable to foreclose upon Collateral Agent for the benefit of Lenders; (B) covering all risks required to be covered by the insurance provided for in Section (a)(i), (iii), (iv) and (viii); (C) in an amount equal to one hundred percent (100%) of the aggregate projected net income plus continuing expenses from the operation of the Properties for a period of at least twelve (12) months after the date of the Casualty; and (D) containing an extended period of indemnity endorsement which provides that after the physical loss to the Improvements and personal property at a Property has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss, or otherwise enforce any Lien created under the expiration of thirty (30) days from the date that the applicable Property is repaired or replaced and operations are resumed, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period. The amount of such business income or rental loss insurance shall be determined prior to the Closing Date and at least once each year thereafter based on Borrower’s reasonable estimate of the net income from each Property for the succeeding twelve (12) month period. All proceeds payable to Collateral DocumentsAgent for the benefit of Lenders pursuant to this subsection shall be held in the Casualty and Condemnation Subaccount and disbursed to the Cash Management Account during the month to which such proceeds relate (or in the month received if such proceeds relate to a month prior to the month in which such proceeds were received); orprovided, however, that nothing herein contained shall be deemed to relieve Borrower of their obligation to pay the Obligations on the respective dates of payment provided for in this Agreement and the other Loan Documents except to the extent such amounts are actually paid out of the proceeds of such business income insurance;
(iii) except at all times during which structural construction, repairs or renovations are being made with respect to any Property, and only if each of the property coverage form and the liability insurance coverage form does not otherwise apply, (A) owner’s contingent or protective liability insurance, otherwise known as expressly Owner Contractor’s Protective Liability (or its equivalent), covering claims not covered by or under the terms or provisions of the above mentioned commercial general liability insurance policy and (B) the insurance provided for in Section 17.03(a) written in a so-called builder’s risk completed value form including coverage for all insurable hard and soft costs of construction (x) on a non-reporting basis, (y) against all risks insured against pursuant to take Section (a)(i), (iii), (iv) and (viii), (z) including permission to occupy such Property and (C) with an agreed amount endorsement waiving co-insurance provisions;
(iv) commercial general liability insurance against claims for personal injury, bodily injury, death or property damage occurring upon, in or about any other action whatsoever Property, such insurance (A) to be on the so-called “occurrence” form with regard a combined limit of not less than One Million and No/100 Dollars ($1,000,000.00) per occurrence; Two Million and No/100 Dollars ($2,000,000.00) in the aggregate “per location” and overall Twenty Million and No/100 Dollars ($20,000,000.00) in the aggregate; (B) to any or continue at not less than the aforesaid limit until required to be changed by Required Lenders in writing by reason of changed economic conditions making such protection inadequate and (C) to be at least as broad as Insurance Services Offices (ISO) policy form CG 00 01;
(v) if applicable, automobile liability coverage for all owned and non-owned vehicles, including rented and leased vehicles, containing minimum limits per occurrence of One Million and No/100 Dollars ($1,000,000.00);
(vi) if applicable, worker’s compensation subject to the worker’s compensation laws of the Liensapplicable state, Collateral Documents and employer’s liability in amounts reasonably acceptable to Required Lenders;
(vii) umbrella and excess liability insurance in an amount not less than Ten Million and No/100 Dollars ($10,000,000.00) per occurrence and in the aggregate on terms consistent with the commercial general liability insurance policy required under Section (a)(iv), and including employer liability and automobile liability, if applicable; and
(viii) upon sixty (60) days’ written notice, such other reasonable insurance, and in such reasonable amounts as Required Lenders from time to time may reasonably request against such other insurable hazards which at the time are commonly insured against for properties similar to the Properties located in or Collateralaround the region in which Properties are located.
(db) The Collateral Agent will All Policies required pursuant hereto shall: (i) be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
obtained under valid and enforceable policies (e) In acting as Collateral Agent hereunder and under the Collateral Documentscollectively, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of “Policies” or in the rightssingular, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligencePolicy”.
(f) The Collateral Agent shall be entitled to rely upon), and shall be subject to the approval of Required Lenders as to insurance companies, amounts, deductibles, loss payees and insureds and (ii) be issued by financially sound and responsible insurance companies authorized to do business in the states where the applicable Properties are located and having a rating of “A3” or better by Moody’s or, if Moody’s does not incur any liability for relying uponprovide a rating of an applicable insurance company, any noticea rating of “A-” or better by S&P or Fitch; provided, requesthowever, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and that if Borrower elects to have been signedits insurance coverage provided by a syndicate of insurers, sent then, if such syndicate consists of five (5) or otherwise authenticated by more members, (A) at least sixty percent (60%) of the proper Person insurance coverage (whether or not seventy-five percent (75%) if such Person in fact meets syndicate consists of four (4) or fewer members) and one hundred percent (100%) of the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person (whether or not first layer of such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and insurance coverage shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel, 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.
(g) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee, which shall deliver to the Holders of Notes, copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.pr
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