Collateral Agent. (A) The Issuer and the Subsidiary Guarantors hereby appoint U.S. Bank Trust Company, National Association to act as Collateral Agent, and each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to such appointment on its behalf. The Collateral Agent shall have the privileges, powers and immunities as set forth in this Indenture and the Security Documents. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Security Documents or the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Security Documents and the Intercreditor Agreements to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, the Issuer or any Subsidiary Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents or the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. (B) The Issuer and the Subsidiary Guarantors hereby agrees that the Collateral Agent shall 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, and in accordance with, the terms of the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder. The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (C) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements. (D) The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder or under any Security Documents or Intercreditor Agreements to which it is a party, except for its own gross negligence or willful misconduct. 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 been grossly negligent in ascertaining the pertinent facts. (E) The Collateral Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Majority Holders 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. Except as otherwise provided in the Security Documents, the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent of the Trustee or the Majority Holders and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders. If the Collateral Agent shall request direction from the Majority Holders with respect to any action, the Collateral Agent shall be entitled to refrain from taking such action unless and until the Collateral Agent shall have received direction from the Majority Holders, and the Collateral Agent shall not incur liability to any Person by reason of so refraining. (F) 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 Majority Holders (subject to this Section 11.01(F)), subject to the terms of the Security Documents. (G) Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements, neither the Collateral Agent nor any of its respective officers, directors, employees or agents or other Affiliates 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. (H) 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 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 and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements, 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 such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders or to the Trustee, in the case of the Collateral Agent, to assure that the Collateral exists or is owned by the Issuer or any Subsidiary 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 of the Issuer’s or any Subsidiary Guarantor’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 value, genuineness, validity, ownership, 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 or the Intercreditor Agreements other than to exercise such rights, authorities and powers pursuant to the instructions of the Trustee or the Majority Holders or as otherwise provided in the Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall the Collateral Agent or the Trustee 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 Agreements (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. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income thereon. 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, including, without limitation, 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 be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. The Holders, through their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, 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 7.15 and the other provisions of this Indenture. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Collateral Agent, in such capacity. (O) 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 Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (P) 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 Agreements, 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 or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Age

Appears in 9 contracts

Sources: Indenture (Wolfspeed, Inc.), Indenture (Wolfspeed, Inc.), Indenture (Wolfspeed, Inc.)

Collateral Agent. (Aa) The ~~Issuer and the Subsidiary Guarantors~~ Company hereby ~~appoint U.S. Bank Trust Company~~appoints Wilmington Trust, National Association to act as Collateral ~~Agent,~~ Act and each Holder, by its acceptance of ~~any~~ the Notes ~~and the Subsidiary Guarantees thereof,~~ irrevocably consents and agrees to such ~~appointment on its behalf. The Collateral Agent shall have the privileges, powers and immunities as set forth in this Indenture and the Security Documents. Notwithstanding any provision~~ appointment. (b) Subject to the ~~contrary contained elsewhere in this Indenture~~provisions of Section 11.01 as to the Trustee only, the Security Documents or the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Security Documents and the Intercreditor Agreements to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with neither the Trustee, any Holder, the Issuer or any Subsidiary Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents or the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. (B) The Issuer and the Subsidiary Guarantors hereby agrees that the Collateral Agent shall 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, and in accordance with, the terms of the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder. The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (C) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements. (D) The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither nor the Collateral Agent nor any of ~~its~~ their respective officers, directors, ~~employees~~ employees, attorneys or agents shall be responsible or liable (i) for ~~any act~~ the legality, enforceability, effectiveness or failure to act hereunder or under any Security Documents or Intercreditor Agreements to which it is a party, except for its own gross negligence or willful misconduct. The Collateral Agent shall have no liability for any action taken, or errors in judgment made, in good faith by it or any sufficiency of its officers, employees or agents, unless it shall have been grossly negligent in ascertaining the pertinent facts. (E) The Collateral Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Majority Holders 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. Except as otherwise provided in the Security Documents, for the ~~Collateral Agent shall in all cases be fully protected in acting~~creation, perfection, priority, sufficiency, maintenance, renewal or ~~in refraining from acting~~protection of any Lien, under this Indenture, the Security Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent of the Trustee or the Majority Holders and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders. If the Collateral Agent shall request direction from the Majority Holders with respect to any action, the Collateral Agent shall be entitled to refrain from taking such action unless and until the Collateral Agent shall have received direction from the Majority Holders, and the Collateral Agent shall not incur liability to any Person by reason of so refraining. (F) 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 Majority Holders (subject to this Section 11.01(F)), subject to the terms of the Security Documents. (G) Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements, neither the Collateral Agent nor any of its respective officers, directors, employees or agents or other Affiliates shall be liable for failure to demand, collect or realize upon any of the Collateral or for any ~~delay in doing so~~ defect or ~~shall be under any obligation~~ deficiency as 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. (H) 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 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 and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreementsmatters, or (ii) ~~payments from the Collateral Agent in excess~~ for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the ~~amount required to be paid to~~ Liens or Security Documents or any delay in doing so; except, in the ~~Trustee pursuant to Article 7, the Trustee shall promptly turn the same over to~~ case of the Collateral Agent, ~~in kind~~to the extent such action or omission constitutes gross negligence 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, (iii) for the validity, sufficiency, value, genuineness, ownership or transferability of the Collateral, written instructions or any agreement or assignment contained therein and ~~with such endorsements~~ will not be regarded as ~~may~~ making nor be required to ~~negotiate~~ make, any representations thereto, or for the ~~same~~ validity of the title, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the ~~Collateral Agent such proceeds to be applied by~~ maintenance of the Collateral ~~Agent pursuant to~~ or (iv) for the ~~terms~~ legality, enforceability, effectiveness or sufficiency of the Intercreditor Agreement, or any subordination agreement or other similar agreement entered into in connection with this Indenture~~, the Security Documents and the Intercreditor Agreements. (I)~~ . Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to the Trustee or any of the Holders ~~or to the Trustee, in the case of the Collateral Agent,~~ to assure that the Collateral exists or is owned by the ~~Issuer~~ Company or any ~~Subsidiary~~ 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 of the ~~Issuer’s or any Subsidiary Guarantor’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 value, genuineness, validity, ownership, 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 or the Intercreditor ~~Agreements~~ Agreement other than ~~to exercise such rights, authorities and powers~~ pursuant to the instructions of the Trustee or the ~~Majority~~ Holders of a majority in aggregate principal amount of the then outstanding Notes or as otherwise provided in the Security Documents~~. Further~~ . (c) The rights, privileges, protections, immunities and benefits given to the ~~foregoing~~ Trustee under this Indenture, including, without limitation, its right to be indemnified, reimbursed and ~~notwithstanding anything~~ compensated and all other rights, privileges, protections, immunities and benefits set forth in Article 11, are extended to the ~~contrary~~ Collateral Agent, and its agents, receivers and attorneys, and shall be enforceable by, the Collateral Agent, as if fully set forth in this ~~Indenture~~ Section 13.06 with respect to the Collateral Agent, except that the Collateral Agent shall only be liable for (and shall be indemnified and held harmless to the extent such Losses do not constitute) its gross negligence or in willful misconduct (as determined by a final order of a court of competent jurisdiction that is not subject to appeal). In acting under any Security Document or the Intercreditor Agreement and any ~~Intercreditor Agreement~~other Transaction Document, ~~in no event shall~~ the Collateral Agent or the ~~Trustee~~ Trustee, as applicable, shall enjoy the rights, privileges, protections, immunities, indemnities and benefits that are extended to the Collateral Agent or the Trustee, as applicable, hereunder. (d) Notwithstanding anything herein to the contrary, the duties of the Collateral Agent shall be ~~responsible for, or~~ ministerial and administrative in nature and the Collateral Agent will not have any ~~duty~~ duties nor will it have responsibilities or ~~obligation with respect to, the recording, filing, registering, perfection, protection or maintenance of the security interests or Liens intended to be created~~ obligations other than those expressly assumed by it in this Indenture, the other Security Documents or the Intercreditor Agreements (including without limitation the filing or continuation of any Uniform Commercial Code financing or continuation statements or similar documents or instruments), nor shall to which the Collateral Agent ~~be responsible for,~~ is a party and the Intercreditor Agreement. The use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or ~~makes any representation regarding, the validity, effectiveness~~ other implied (or ~~priority~~ 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. The Company hereby agrees that the Collateral Agent shall hold the Collateral on behalf of and for the benefit of the Secured Parties, in each case pursuant to the Security ~~Documents or the security interests or Liens intended to be created thereby. (J)~~ Documents. The Collateral Agent shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture or any Security Document at the request, order or direction of the Holders pursuant to the provisions of this Indenture or any Security Document, unless such representative or other party shall have furnished to the Collateral Agent security or indemnity satisfactory to the Collateral Agent against the fees, costs, expenses and liabilities including attorneys’ fees and expenses which may be incurred therein or thereby. The Collateral Agent shall have no responsibility or liability for any loss or damages of any nature that may arise from any action taken or not taken by the Collateral Agent in accordance with the written consent of the Holders of at least a majority of the aggregate principal amount of Notes then Outstanding. The permissive authorizations, entitlements, powers and rights granted to the Collateral Agent in this Indenture and the Security Documents shall not be construed as duties. The Collateral Agent shall have no duty to review or analyze reports delivered to it. 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 actual or constructive notice or knowledge of any event or circumstance or any information contained therein or determinable from information contained therein. (e) 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~~thereon or as to preservation of rights against prior parties or any other rights pertaining thereto. In addition, neither the Collateral Agent nor the Trustee will 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. If, at the direction of the Holders of at least a majority of the aggregate principal amount of Notes then Outstanding, the Trustee or Collateral Agent files or records any Security Documents or any related UCC financing statement or other similar documents, such filing or recording by the Trustee or Collateral Agent at the direction of the Holders of at least a majority of the aggregate principal amount of Notes then Outstanding shall be deemed done by Trustee or Collateral Agent without recourse, representation or warranty by the Trustee or the Collateral Agent (and the Trustee and the Collateral Agent disclaim any representation or warranty as to the validity, effectiveness, priority, perfection or otherwise). The Collateral Agent ~~shall~~ will 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 ~~they accord similar~~ it accords property held ~~for its own benefit~~ by it as a collateral agent or any similar arrangement, and ~~shall~~ the Collateral Agent will not be liable or responsible for any loss or diminution in the value of any of the ~~Collateral, including, without limitation,~~ Collateral by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent in good faith. The Collateral Agent shall be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (Kf) ~~Upon the receipt by the~~ The Collateral Agent ~~of a written request of~~ shall not have any duty to ascertain or inquire as to the ~~Issuer signed by an Officer (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~~ performance or observance 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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. The Holders, through their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies with the terms of this Indenture ~~and~~ or any Indenture Document by the ~~Note Documents and~~ Company or any Company Indenture Party or any other Person that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Orderis a party thereto or bound thereby. (Mg) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, 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 7.15 and the other provisions of this Indenture. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Collateral Agent, in such capacity. (O) 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 Collateral, the Collateral Agent shall not be required to ~~commence~~ acquire title to an asset for any ~~such action~~ reason and shall not be required to carry out any fiduciary or ~~exercise any remedy or to inspect or conduct any studies~~ trust obligation for the benefit of any property under the Mortgages or take any such other action if the Collateral Agent has reasonably 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 substancesanother. The Collateral Agent is not a fiduciary and shall at not be deemed to have assumed any ~~time be entitled~~ fiduciary obligation. If the Collateral Agent or the Trustee in its sole discretion believes that any obligation to ~~cease taking~~ take or omit to take any action ~~described in this clause if it no longer reasonably deems any indemnity, security or undertaking from~~ may cause the ~~Issuer~~ Collateral Agent or the ~~Holders~~ Trustee, as applicable to be ~~sufficient. (P) The parties hereto~~ considered an “owner or operator” under any environmental laws or otherwise cause the Collateral Agent or the Collateral Agent, as applicable, to incur, or be exposed to, any environmental liability or any liability under any other federal, state or local law, the Collateral Agent and the ~~Holders hereby agree and acknowledge that neither~~ Trustee reserve the right, instead of taking such action, either to resign as Collateral Agent or Trustee or to 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 assume,~~ will be ~~responsible for or otherwise be obligated~~ liable to any Person for any ~~liabilities~~liability, 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, 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 any kind of discharge or release or threatened discharge or release of any hazardous materials into the environment. (h) The Collateral Agent may resign or be replaced in accordance with the procedures set forth in Section 11.10 hereof, except that references to the Trustee in such section shall be deemed to be references to the Collateral Agent for this purpose. If the Collateral Agent consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act will be the successor Collateral Agent. (i) At all times when the Person serving as Trustee is not itself also serving as the Collateral Agent, the Company shall deliver to the Trustee copies of all Security Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to ~~any environmental law as a result of~~ the Security Documents. (j) Notwithstanding anything to the contrary contained in this Indenture, the Intercreditor ~~Agreements~~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 the mortgages or take any such other action if the Collateral Agent has determined that the Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances. The Collateral Agent shall at any time be entitled to cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking from the Company or the Holders to be sufficient. (k) Upon the receipt by the Collateral Agent of a written request of the Company signed by an Officer (a “Security ~~Documents~~ 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 Initial 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 13.06(k), and (ii) instruct the Collateral Agent to execute and enter into such Security Document; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it determines adversely affects the Collateral Agent in a commercially unreasonable manner (taking into account other security documents it has recently agreed to in similar secured notes transactions). Any such execution of a Security Document shall be at the direction and reasonable expense of the Company, upon delivery to the Collateral Agent of an Officers’ Certificate and Opinion of Counsel stating that all conditions precedent to the execution and delivery of the 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. (l) Without limiting the foregoing, with respect to any Collateral located outside of the United States (“Foreign Collateral”), the Collateral Agent shall have no obligation to directly enforce, or exercise rights and remedies in respect of, or otherwise exercise any judicial action or appear before any court in any jurisdiction outside of the United States. To the extent the Holders of a majority in aggregate outstanding amount of Notes outstanding determine that it is necessary or advisable in connection with any enforcement or exercise of rights with respect to Foreign Collateral to exercise any judicial action or appear before any such court, the Holders of a majority in aggregate outstanding amount of Notes outstanding shall be entitled to direct the Collateral Agent to appoint a local agent for such purpose (subject to the receipt of such protections, security and indemnities as the Collateral Agent shall determine in its sole discretion to protect the Collateral Agent from liability). (m) In no event shall the Collateral Agent be required to execute and deliver any landlord lien waiver, estoppel or collateral access letter, or any ~~actions taken pursuant hereto~~ account control agreement or ~~thereto. Further~~any instruction or direction letter delivered in connection with such document that the Collateral Agent determines adversely affects it or otherwise subjects it to personal liability, including without limitation agreements to indemnify any contractual counterparty; provided that nothing in this clause (m) shall be implied as imposing any such obligation on the ~~parties hereto and~~ Company or any Guarantor to obtain any such landlord lien waiver, estoppel or collateral access letter, or any account control agreement. (n) Neither the ~~Holders hereby agree and acknowledge~~ Trustee nor the Collateral Agent shall be under any obligation to effect or maintain insurance or to renew any policies of insurance or to make any determination or 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. (o) Nothing in this 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 or in the exercise of any of its rights ~~under this Indenture, the Intercreditor Agreements 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 Age~~pow

Appears in 5 contracts

Sources: Indenture (ProSomnus, Inc.), Indenture (ProSomnus, Inc.), Indenture (ProSomnus, Inc.)

Collateral Agent. (Aa) The ~~Issuer~~ Administrative Agent and each of the Lenders hereby designates and appoints the Collateral Agent as its agent under this Agreement, the Collateral Documents and the ~~Subsidiary Guarantors~~ Intercreditor Agreements and the Administrative Agent and each of the Lenders hereby ~~appoint U.S. Bank Trust Company~~irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Agreement, ~~National Association~~ the Collateral Documents and the Intercreditor Agreements and to ~~act~~ exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement, the Collateral Documents and the Intercreditor Agreements, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.11 are solely for the benefit of the Notes Collateral Agent and none of the Administrative Agent, ~~and each Holder~~any of the Lenders, ~~by its acceptance~~ the Borrower nor any of the Guarantors shall have any rights as a third party beneficiary of any ~~Notes and~~ of the ~~Subsidiary Guarantees thereof, irrevocably consents and agrees to such appointment on its behalf. The Collateral Agent shall have the privileges, powers and immunities~~ provisions contained herein other than as ~~set forth~~ expressly provided in ~~this Indenture and the Security Documents~~Section 12.03. Notwithstanding any provision to the contrary contained elsewhere in this ~~Indenture~~Agreement, the ~~Security~~ Collateral Documents or and the Intercreditor Agreements, ~~the duties of the Collateral Agent shall be ministerial and administrative in nature, and~~ the Collateral Agent shall not have any duties or ~~responsibilities, except those expressly set forth herein and in the Security Documents and the Intercreditor Agreements to which the Collateral Agent is a party,~~ responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any ~~trust or other~~ fiduciary relationship with the ~~Trustee~~Administrative Agent, any ~~Holder, the Issuer~~ Lender or any ~~Subsidiary~~ Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this ~~Indenture~~Agreement, the ~~Security~~ Collateral Documents or and the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this ~~Indenture~~ Agreement with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties~~. (B) The Issuer and the Subsidiary Guarantors hereby agrees that~~ . Except as expressly otherwise provided in this Agreement, the Collateral Agent shall ~~hold~~ have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral on behalf of and for the benefit of all of the Holders, the Trustee and the Collateral Agent, in each case pursuant to, and in accordance with, the terms of the Security Documents and the Intercreditor Agreements and that the Collateral as now Agent is expressly entitled to take or ~~hereafter constituted shall be held for the benefit of all the Holders~~assert under this Agreement, the Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder. The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (C) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, ~~whether executed on or after~~ including the ~~Issue Date~~exercise of remedies pursuant to Article VIII, and ~~perform its obligations and exercise its rights, powers and discretions under~~ any action so taken or not taken shall be deemed consented to by the ~~Security Documents~~ Administrative Agent and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor AgreementsLenders. (Db) ~~The Collateral Agent shall be accountable only for amounts that it actually receives as a result~~ None of ~~the exercise of such powers, and neither~~ the Collateral Agent ~~nor~~ or any of its ~~officers, directors, employees or agents~~ Affiliates shall (i) be ~~responsible~~ liable for any ~~act~~ action taken or ~~failure~~ omitted to ~~act hereunder~~ be taken by any of them under or ~~under any Security Documents~~ in connection with this Agreement or ~~Intercreditor Agreements to which it is a party,~~ the transactions contemplated hereby (except for its own gross negligence or willful misconduct~~. The~~ ) or under or in connection with any 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 been grossly negligent in ascertaining the pertinent facts. (E) The Collateral Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents Document or the Intercreditor Agreements ~~unless it shall first receive such advice~~ or ~~concurrence~~ the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the ~~Trustee~~ Administrative Agent or ~~the Majority Holders as it determines and~~any Lender for any recital, ~~if it so requests~~statement, ~~it shall first be indemnified to its satisfaction~~ representation, warranty, covenant or agreement made by the ~~Holders against~~ Borrower or any ~~and all liability and expense which may be incurred~~ Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by ~~it by reason of taking~~ the Collateral Agent under or ~~continuing to take any such action. Except as otherwise provided~~ in ~~the Security Documents~~connection with, this Agreement, the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent of the Trustee or the Majority Holders and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders. If the Collateral Agent shall request direction from the Majority Holders with respect to any action, the Collateral Agent shall be entitled to refrain from taking such action unless and until the Collateral Agent shall have received direction from the Majority Holders, and the Collateral Agent shall not incur liability to any Person by reason of so refraining. (F) 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 Majority Holders (subject to this Section 11.01(F)), subject to the terms of the Security Documents. (G) Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements, ~~neither~~ or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Collateral Documents or the Intercreditor Agreements, or for any failure of the Borrower, any Guarantor or any other party to this Agreement, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent ~~nor~~ or any of its ~~respective officers, directors, employees or agents or other~~ Affiliates ~~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~~ the Administrative Agent or ~~otherwise dispose~~ any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement, the Collateral ~~upon~~ Documents or the ~~request of any other Person~~ Intercreditor Agreements or to ~~take~~ inspect the properties, books, or records of the Borrower, any ~~other action whatsoever with regard to the Collateral~~ Guarantor or any ~~part thereof~~Guarantor’s Affiliates. (Hc) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Borrower, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Administrative Agent. The Administrative Agent and the Lenders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding the Borrower, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Administrative Agent or the Lenders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds. (d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Lenders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements. (e) The Administrative Agent agrees that it shall not (and shall not be obliged to), and shall not instruct the Collateral Agent to, unless specifically requested to do so by the Required Lenders, take or cause to be taken any action to enforce its rights under this Agreement or against the Borrower or any Guarantor, including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the ~~Trustee~~ Administrative Agent shall receive (i) 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~~Agreement, except for any such proceeds or payments received by the ~~Trustee~~ Administrative Agent from the Collateral Agent pursuant to the terms of this ~~Indenture and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements~~Agreement, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the ~~Trustee~~ Administrative Agent pursuant to Article 7VIII, the ~~Trustee~~ Administrative Agent shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent. (f) The Administrative Agent is each Lender’s agent for the purpose of perfecting the Lenders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Administrative Agent obtain possession of any such ~~proceeds to be applied by~~ Collateral, upon request from the Borrower, the Administrative Agent shall notify the Collateral Agent ~~pursuant~~ thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the ~~terms of this Indenture,~~ Collateral Agent or otherwise deal with such Collateral in accordance with the ~~Security Documents and the Intercreditor Agreements~~Collateral Agent’s instructions. (Ig) ~~Neither the Trustee nor the~~ The Collateral Agent shall have ~~any~~ no obligation whatsoever to the Administrative Agent or any of the ~~Holders or to the Trustee, in the case of the Collateral Agent,~~ Lenders to assure that the Collateral exists or is owned by the ~~Issuer~~ Borrower or any ~~Subsidiary~~ 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 of or the ~~Issuer’s~~ Borrower or any ~~Subsidiary~~ Guarantor’s property constituting ~~Collateral~~ collateral intended to be subject to the Lien and security interest of the ~~Security~~ Collateral Documents has been properly and completely listed or delivered, as the case may be, or the ~~value,~~ genuineness, validity~~, ownership~~, 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~~Agreement, any ~~Security~~ Collateral Document or the Intercreditor ~~Agreements other than to exercise such rights~~Agreements, ~~authorities~~ it being understood and ~~powers pursuant to the instructions of the Trustee or the Majority Holders or as otherwise provided~~ agreed that in the Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall the Collateral Agent or the Trustee 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 Agreements (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. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income thereon. 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, ~~including~~or any act, ~~without limitation~~omission, ~~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 be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (a “Security Document Order”)event related thereto, the Collateral Agent ~~is hereby authorized to execute and enter into~~may act in any manner it may deem appropriate, 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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in ~~no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects~~ its sole discretion given the Collateral Agent~~. The Holders, through their acceptance of the Notes, hereby authorize and direct~~ ’s own interest in the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, 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 7.15 and the other provisions of this Indenture. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have ~~all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded~~ no other duty or liability whatsoever to the ~~Trustee (including its rights~~ Administrative Agent or any Lender as to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal any of the ~~Collateral Agent, in such capacity~~foregoing. (Oh) ~~Notwithstanding anything to the contrary contained in~~ No provision of this ~~Indenture~~Agreement, the Intercreditor Agreements or ~~the Security Documents, in the event~~ any Collateral Document shall require the Collateral Agent ~~is entitled~~ (or ~~required~~ the Administrative Agent) to ~~commence an action to foreclose~~ expend or risk its own funds or otherwise ~~exercise~~ incur any financial liability in the performance of any of its ~~remedies~~ duties hereunder or thereunder or to ~~acquire control~~ take or ~~possession~~ omit to take any action hereunder or thereunder or take any action at the request or direction of Lenders (or the Administrative Agent in the case of the ~~Collateral~~Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it. (i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be ~~required~~ construed to ~~commence any such action or exercise any remedy or~~ impose duties to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficientact. (Pj) ~~The parties hereto and the Holders hereby agree and acknowledge that neither~~ Neither the Collateral Agent nor the ~~Trustee~~ Administrative Agent shall ~~assume~~be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Administrative Agent shall be ~~responsible for or otherwise be obligated~~ liable for any ~~liabilities~~indirect, ~~claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements,~~ special or consequential damages (~~including foreseeable and unforeseeable), judgments, expenses and costs (including~~ included 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 personalto lost profits) ~~of any kind~~ whatsoever, pursuant to any environmental law as a result of this Indenture, the Intercreditor Agreements, 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 or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest even if it has been informed of the ~~Collateral Age~~likelihood thereof and regardless of the form of action.

Appears in 4 contracts

Sources: Credit Agreement (ATD Corp), Incremental Amendment (American Tire Distributors Holdings, Inc.), Incremental Amendment (ATD Corp)

Collateral Agent. ~~(A)~~ The ~~Issuer~~ Trustee and each of the Holders by acceptance of the Securities hereby authorize the appointment of the Collateral Agent as the Trustee’s and the ~~Subsidiary Guarantors hereby appoint U.S. Bank Trust Company, National Association~~ Holders’ Collateral Agent under the Security Documents and in its capacity as mortgagee and security trustee pursuant to ~~act as~~ the Collateral ~~Agent~~Rig Mortgage, and the Trustee and each ~~Holder,~~ of the Holders by ~~its~~ acceptance of ~~any Notes and~~ the ~~Subsidiary Guarantees thereof,~~ Securities hereby irrevocably ~~consents and agrees to such appointment on its behalf. The~~ authorize the Collateral Agent ~~shall have~~ to enter into the ~~privileges,~~ Security Documents and to take such action on their behalf under the provisions of the Security Documents and to exercise such powers and ~~immunities~~ perform such duties as ~~set forth in~~ 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 provision to the contrary contained elsewhere in this ~~Indenture,~~ Indenture and the Security ~~Documents or the Intercreditor Agreements~~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 Security Documents ~~and the Intercreditor Agreements~~ to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or ~~other~~ fiduciary relationship with the Trustee, any Holder, the ~~Issuer~~ Company, any Collateral Grantor or any ~~Subsidiary~~ Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this ~~Indenture,~~ Indenture and the Security Documents ~~or the Intercreditor Agreements~~ or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties~~. (B)~~ . The ~~Issuer~~ Trustee is authorized and directed by the Holders and the ~~Subsidiary Guarantors hereby agrees that~~ Holders by acquiring the Securities are deemed to have authorized the Trustee, as applicable, to cause the Collateral Agent ~~shall hold the Collateral on behalf of~~ to enter into and ~~for the benefit of all of the Holders, the Trustee and the Collateral Agent, in each case pursuant to, and in accordance with, the terms of~~ perform its obligations under the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunderDocuments. The Collateral Agent is ~~each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only~~ authorized and directed by ~~possession. Should~~ the Trustee ~~obtain possession of any such Collateral,~~ and the ~~Trustee shall notify~~ Holders and the ~~Collateral Agent thereof and promptly shall deliver such Collateral~~ Holders by acquiring the Securities are deemed to ~~the Collateral Agent or otherwise deal with such Collateral in accordance with~~ have authorized the Collateral Agent~~’s instructions. (C) Each Holder~~, ~~by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees~~ to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewithto which it is a party, (ii) ~~make~~ bind the ~~representations of the Holders set forth in the Security Documents~~ Trustee and ~~the Intercreditor Agreements, and (iii) bind~~ the Holders on the terms as set forth in ~~the~~ 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 ~~Intercreditor Agreements. (D) The Collateral Agent shall be accountable only for amounts that it actually receives~~ 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 ~~a result~~ 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 ~~exercise of such powers, and neither~~ Holders by acquiring the Securities is hereby deemed to have directed the Trustee to appoint the Collateral Agent ~~nor any of~~ as its ~~officers~~mortgagee and security trustee to receive, ~~directors~~hold, ~~employees or agents shall be responsible for any act or failure to act hereunder or~~ administer and enforce the Collateral Rig Mortgage covering the Collateral Rig, as contemplated under ~~any Security Documents or Intercreditor Agreements to which it is a party, except for its own gross negligence or willful misconduct~~this Indenture. The Collateral Agent shall not be deemed to have ~~no liability for~~ knowledge or notice of the occurrence of any ~~action taken,~~ Default or ~~errors in judgment made, in good faith by it or any~~ Event of ~~its officers, employees or agents~~Default, unless it shall have been grossly negligent in ascertaining the pertinent facts. (E) The Collateral Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Majority Holders 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. Except as otherwise provided in the Security Documents, the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent of the Trustee or the Majority Holders and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders. If the Collateral Agent shall request direction from the Majority Holders with respect to any action, the Collateral Agent shall be entitled to refrain from taking such action unless and until the Collateral Agent shall have received ~~direction~~ written notice from the ~~Majority Holders, and~~ Trustee or unless a written notice of any event which is in fact such a Default is received by the Collateral Agent ~~shall not incur liability to any Person by reason of so refraining. (F)~~ at the address specified in Section 14.01, and such notice references the Securities and this Indenture. The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the ~~Majority~~ Holders of a majority in aggregate principal amount of the Securities (subject to this Section ~~11.01(F~~12.05)~~), subject~~ . The Collateral Agent shall have no obligation and makes no representation whatsoever to the ~~terms~~ Trustee or any of the Holders as to the existence, genuineness, value or protection of the Collateral or the sufficiency of any Security Documents~~. (G) Except as otherwise explicitly provided herein~~ , or ~~in the Security Documents or the Intercreditor Agreements, neither~~ that the Collateral ~~Agent nor any of its respective officers, directors, employees or agents or other Affiliates shall be liable for failure to demand, collect or realize upon~~ is owned by 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. (H) 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 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 and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements, 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 such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders or to the Trustee, in the case of the Collateral Agent, to assure that the Collateral exists or is owned by the Issuer or any Subsidiary Guarantor Grantors or is cared for, ~~protected,~~ protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the ~~Issuer’s or any Subsidiary Guarantor~~Collateral 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 ~~value,~~ genuineness, validity~~, ownership~~, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, ~~disclosure,~~ disclosure or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this ~~Indenture~~Indenture or any other Security Documents, it being understood and agreed that in respect of the Collateral, or any ~~Security Document~~ act, omission, or event related thereto, the ~~Intercreditor Agreements~~ Collateral Agent shall have no other ~~than~~ duty or liability whatsoever to ~~exercise such rights, authorities and powers pursuant to the instructions of~~ the Trustee or any Holder as to any of the ~~Majority Holders~~ foregoing. The grant of permissive rights or ~~as otherwise provided in the Security Documents. Further~~ powers to ~~the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall~~ 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 ~~the Trustee~~ continuation statements, to record any documents or instruments in any public office at any time or be responsible ~~for,~~ for perfection or ~~have any duty or obligation with respect to,~~ maintaining the ~~recording, filing, registering, perfection, protection or maintenance~~ perfection of the security interests ~~or Liens intended~~ purported to be created by ~~this Indenture,~~ the Security Documents or and such responsibility shall be solely that of the ~~Intercreditor Agreements (including without limitation the filing or continuation~~ Company. Each of ~~any Uniform Commercial Code financing or continuation statements or similar documents or instruments), nor shall~~ the Collateral Agent ~~be responsible for~~and the Trustee, 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. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral each in its possession or control or any income thereon. 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 capacity as such, shall not be liable or responsible for the failure of the Company or any ~~loss or diminution in value of any of~~ Collateral Grantor to maintain insurance on the Collateral, ~~including, without limitation,~~ nor shall it be responsible for any loss due to the insufficiency of such insurance or by reason of the ~~act or omission~~ failure of any ~~carrier, forwarding agency~~ insurer to pay the full amount of any loss against which it may have insured to the Company or ~~other agent or bailee selected by the~~ any Collateral Agent in good faith. The Collateral Agent shall be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (a “Security Document Order”)Grantor, 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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. The Holders, through their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, 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 7.15 and the other provisions of this Indenture. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Collateral Agent, in such capacity. (O) 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 Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (P) 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 Agreements, 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 or ~~the Trustee may hold or obtain indicia~~ any other Person. The provisions of ~~ownership primarily~~ Article 7, mutatis mutandis, shall apply to ~~protect the security interest of~~ the Collateral ~~Age~~Agent.

Appears in 3 contracts

Sources: Indenture (Transocean Ltd.), Indenture (Transocean Ltd.), Indenture (Transocean Ltd.)

Collateral Agent. (Aa) The ~~Issuer and the Subsidiary Guarantors hereby appoint U.S. Bank Trust Company, National Association to act as Collateral Agent, and each~~ Holder, by ~~its~~ acceptance of ~~any Notes~~ the Note, hereby designates and appoint the Collateral Agent as its agent under the Security Documents and the ~~Subsidiary Guarantees thereof~~Holder by acceptance of the Note, hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Note and 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 Note and the Security Documents and consents and agrees to ~~such appointment on its behalf~~the terms of this Note and each Security Document (as applicable), as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent ~~shall have~~ agrees to act as such on the ~~privileges~~express conditions contained in this Section 11.5. The Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Note or the Security Documents (as applicable), ~~powers~~ and ~~immunities as~~ the exercise by the Collateral Agent of any rights or remedies set forth ~~in this Indenture~~ herein and ~~the Security Documents~~therein shall be authorized and binding upon all Noteholders. Notwithstanding any provision to the contrary contained elsewhere in this ~~Indenture,~~ Note or the Security Documents ~~or the Intercreditor Agreements,~~ (as applicable) the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Security Documents ~~and the Intercreditor Agreements~~ (as applicable) to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with ~~the Trustee,~~ any ~~Holder, the Issuer~~ holder or any ~~Subsidiary Guarantor~~grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this ~~Indenture~~Note, the Security Documents ~~or the Intercreditor Agreements~~ or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this ~~Indenture~~ Note 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. (Bb) The ~~Issuer and the Subsidiary Guarantors hereby agrees that the~~ Collateral Agent ~~shall hold the Collateral on behalf~~ may perform any of ~~and for the benefit of all of the Holders, the Trustee and the Collateral Agent, in each case pursuant to, and in accordance with, the terms 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 any specified Person, such Person’s Affiliates, and the ~~Intercreditor Agreements~~ respective officers, directors, employees, agents, advisors and ~~that the Collateral as now or hereafter constituted~~ attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be ~~held for the benefit~~ entitled to advice of counsel concerning all ~~the Holders, the Collateral Agent and the Trustee~~matters pertaining to such duties, and ~~that the Lien of this Indenture~~ shall be entitled to act upon, and ~~the Security Documents~~ shall be fully protected in ~~respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited~~ taking action in ~~all respects~~ reliance upon any advice or opinion given by ~~the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder~~legal counsel. The Collateral Agent ~~is each Holder’s agent~~ shall not be responsible for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such ~~Collateral, the Trustee~~ selection was made in good faith and with due care. The exculpatory provisions of this Article 11 shall ~~notify the Collateral Agent thereof~~ apply to any such sub-agent and ~~promptly shall deliver such Collateral~~ to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (C) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment Affiliates of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements. (D) The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder or under any Security Documents or Intercreditor Agreements to which it is a party, except for its own gross negligence or willful misconduct. 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 been grossly negligent in ascertaining the pertinent facts. (E) The Collateral Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Majority Holders 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. Except as otherwise provided in the Security Documents, the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent of the Trustee or the Majority Holders and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders. If the Collateral Agent shall request direction from the Majority Holders with respect to any action, the Collateral Agent shall be entitled to refrain from taking such action unless and until the Collateral Agent shall have received direction from the Majority Holders, and the Collateral Agent shall not incur liability to any Person by reason of so refrainingsub-agent. (F) 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 Majority Holders (subject to this Section 11.01(F)), subject to the terms of the Security Documents. (G) Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements, neither the Collateral Agent nor any of its respective officers, directors, employees or agents or other Affiliates 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. (H) 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 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 and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements, 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 such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders or to the Trustee, in the case of the Collateral Agent, to assure that the Collateral exists or is owned by the Issuer or any Subsidiary 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 of the Issuer’s or any Subsidiary Guarantor’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 value, genuineness, validity, ownership, 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 or the Intercreditor Agreements other than to exercise such rights, authorities and powers pursuant to the instructions of the Trustee or the Majority Holders or as otherwise provided in the Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall the Collateral Agent or the Trustee 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 Agreements (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. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income thereon. 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, including, without limitation, 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 be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. The Holders, through their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, 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 7.15 and the other provisions of this Indenture. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Collateral Agent, in such capacity. (O) 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 Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (P) 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 Agreements, 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 or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Age

Appears in 2 contracts

Sources: Investment Agreement (Inspirato Inc), Investment Agreement (Inspirato Inc)

Collateral Agent. ~~(A)~~ The ~~Issuer and the Subsidiary Guarantors hereby appoint U.S. Bank Trust Company, National Association~~ Collateral Agent has been appointed to act as Collateral ~~Agent, and each Holder~~Agent hereunder by the Lenders and, by ~~its~~ their acceptance of ~~any Notes and~~ the ~~Subsidiary Guarantees thereof~~benefits hereof, ~~irrevocably consents and agrees to such appointment on its behalf~~the other Secured Parties. The Collateral Agent shall be obligated, and shall have the ~~privileges~~right hereunder, ~~powers and immunities as set forth in this Indenture and the Security Documents. Notwithstanding~~ to make demands, to give notices, to exercise or refrain from exercising any provision to the contrary contained elsewhere in this Indenture, the Security Documents or the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in naturerights, and ~~the Collateral Agent shall not have~~ to take or refrain from taking any duties or responsibilities, except those expressly set forth herein and in the Security Documents and the Intercreditor Agreements to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, the Issuer or any Subsidiary Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents or the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. (B) The Issuer and the Subsidiary Guarantors hereby agrees that the Collateral Agent shall 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, and in accordance with, the terms of the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder. The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (C) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements action (including, without limitation, the ~~provisions providing for foreclosure, exercises of remedies and~~ release or substitution of Collateral~~) as the same may be in effect or may be amended from time to time~~ ), solely in accordance with ~~their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents~~ this Agreement and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements. (D) The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder or under any Security Documents or Intercreditor Agreements to which it is a party, except for its own gross negligence or willful misconduct. 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 been grossly negligent in ascertaining the pertinent facts. (E) The Collateral Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Majority Holders 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. Except as otherwise provided in the Security DocumentsCredit Agreement; provided, the Collateral Agent ~~shall~~ shall, after payment in full of all ~~cases be fully protected in acting~~Obligations under the Credit Agreement and the other Senior Finance Documents, exercise, or ~~in refraining~~ refrain from ~~acting~~exercising, ~~under this Indenture, the Security Documents or the Intercreditor Agreements~~ any remedies provided for herein in accordance with ~~a request, direction, instruction or consent~~ the instructions of the ~~Trustee or the Majority Holders and such request and any action taken or failure to act pursuant thereto shall be binding upon all~~ holders of a majority of the ~~Holders. If the Collateral Agent shall request direction from the Majority Holders~~ aggregate notional amount (or, with respect to any ~~action~~Hedging Agreement that has been terminated in accordance with its terms, the ~~Collateral Agent shall be entitled to refrain from taking~~ amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such ~~action unless~~ Hedging Agreement) under all Hedging Agreements. In furtherance of the foregoing provisions of this Section, each Hedging Lender and ~~until~~ Ancillary Lender, by its acceptance of the ~~Collateral Agent~~ benefits hereof, agrees that it shall have ~~received direction from the Majority Holders, and the Collateral Agent shall not incur liability~~ no right individually to any Person by reason of so refraining. (F) 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 Majority Holders (subject to this Section 11.01(F)), subject to the terms of the Security Documents. (G) Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements, neither the Collateral Agent nor any of its respective officers, directors, employees or agents or other Affiliates shall be liable for failure to demand, collect or realize upon any of the Collateral hereunder, it being understood and agreed by such Hedging Lender 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. (H) 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 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 Ancillary Lender that all rights and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements, 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 remedies hereunder may be ~~required to negotiate the same to the Collateral Agent such proceeds to be applied~~ exercised solely by the Collateral Agent ~~pursuant to~~ for the ~~terms of this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any~~ benefit of the ~~Holders or to the Trustee,~~ Secured Parties in the case of the Collateral Agent, to assure that the Collateral exists or is owned by the Issuer or any Subsidiary 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 of the Issuer’s or any Subsidiary Guarantor’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 value, genuineness, validity, ownership, 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 or the Intercreditor Agreements other than to exercise such rights, authorities and powers pursuant to the instructions of the Trustee or the Majority Holders or as otherwise provided in the Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall the Collateral Agent or the Trustee 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 Agreements (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. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income thereon. 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, including, without limitation, 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 be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. The Holders, through their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies accordance with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Section. The Collateral Agent ~~to execute~~ may resign or be removed and ~~enter into such Intercreditor Agreement; provided that in no event shall the~~ a successor Collateral Agent may be ~~required to enter into~~ appointed, all in accordance with Clause 22.9 of the Credit Agreement. After any ~~intercreditor agreement if it reasonably determines that such document adversely affects~~ retiring or removed Collateral Agent's resignation or removal as the Collateral Agent~~. The Holders~~, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, 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 7.15 and the other provisions of~~ this ~~Indenture. (N) In acting~~ Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it under this Indenture or any other Note Document, the Collateral Agent shall have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to Agreement while it was the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Collateral Agent, in such capacity. (O) 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 Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (P) 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 Agreements, 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 or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Age

Appears in 1 contract

Sources: Share Pledge Agreement (Delta I Acquisition Inc)

Collateral Agent. (Aa) The ~~Issuer~~ Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Indenture, the Security Documents and the ~~Subsidiary Guarantors~~ Intercreditor Agreement and the Trustee and each of the Holders, by acceptance of the Notes, hereby ~~appoint U.S. Bank Trust Company~~irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture, ~~National Association~~ the Security Documents and the Intercreditor Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture, the Security Documents and the Intercreditor Agreement, together with such powers as are reasonably incidental thereto. The Collateral Agent agrees to act as ~~Collateral Agent, and each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents~~ such and agrees to ~~such appointment~~ act pursuant to the instructions of the Holders and the Trustee with respect to the Security Documents and the Collateral on ~~its behalf~~the express conditions contained in this Section 10.07. The Collateral Agent shall have all the ~~privileges~~same rights, ~~powers~~ privileges and immunities as the Trustee set forth in Article Seven of this Indenture to the extent not otherwise expressly set forth herein. The provisions of this Section 10.07 are solely for the benefit of the Collateral Agent and none of the ~~Security Documents~~Trustee, any of the Holders, the Issuer nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 10.02. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Security Documents or and the Intercreditor ~~Agreements~~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 Security Documents and the Intercreditor Agreements to which the Collateral Agent is a party~~responsibilities hereunder, nor shall the Collateral Agent have or be deemed to have any ~~trust or other~~ fiduciary relationship with the Trustee, any ~~Holder, the Issuer~~ Holder or any ~~Subsidiary~~ Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents or and the Intercreditor ~~Agreements~~ Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties~~. (B) The Issuer and the Subsidiary Guarantors hereby agrees that~~ . Except as expressly otherwise provided in this Indenture, the Collateral Agent shall ~~hold~~ have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral ~~on behalf of and for the benefit of all of the Holders~~Agent is expressly entitled to take or assert under this Indenture, ~~the Trustee and the Collateral Agent, in each case pursuant to, and in accordance with, the terms of~~ the Security Documents and the Intercreditor ~~Agreements~~ Agreement, including the exercise of remedies pursuant to Article Six, and ~~that the Collateral as now~~ any action so taken or ~~hereafter constituted~~ not taken shall be ~~held for~~ deemed consented to by the ~~benefit of all~~ Trustee and the Holders~~, the Collateral Agent and the Trustee, and that the Lien~~ . (b) None of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder. The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent or ~~otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (C) Each Holder, by~~ any of its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent Affiliates shall (i) be liable for any action taken or omitted to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements. (D) The Collateral Agent shall be ~~accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor~~ taken by any of ~~its officers, directors, employees~~ them under or ~~agents shall be responsible for any act~~ in connection with this Indenture or ~~failure to act hereunder or under any Security Documents or Intercreditor Agreements to which it is a party,~~ the transactions contemplated hereby (except for its own gross negligence or willful misconduct~~. The~~ ) or under or in connection with any Security Document or the Intercreditor Agreement or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any Guarantor, or any officer or Affiliate of any of the foregoing, contained in this or any Indenture, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent ~~shall have no liability~~ under or in connection with, this or any other Indenture, the Security Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this or any other Indenture, the Security Documents or the Intercreditor Agreement, or for any ~~action taken~~failure of the Issuer, any Guarantor or ~~errors in judgment made~~any other party to this Indenture, ~~in good faith by it~~ the Security Documents or the Intercreditor Agreement to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its ~~officers~~Affiliates shall 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, ~~employees~~ or ~~agents~~conditions of, ~~unless it shall have been grossly negligent in ascertaining~~ this or any other Indenture, the ~~pertinent facts~~Security Documents or the Intercreditor Agreement or to inspect the properties, books, or records of the Issuer, any Guarantor or any Guarantor’s Affiliates. (Ec) The Collateral Agent shall be entitled to ~~seek~~ rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Guarantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor ~~Agreements~~ Agreement unless it shall first receive such advice or concurrence of the Trustee or the ~~Majority~~ Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified and/or secured to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. ~~Except as otherwise provided in the Security Documents, the~~ The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor ~~Agreements~~ Agreement in accordance with a request, direction, instruction or consent of the ~~Trustee~~ Holders of a majority in aggregate principal amount of the then outstanding Notes (or ~~the Majority~~ such larger amount of Holders as required pursuant to Section 9.02) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders~~. If~~ . (d) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Issuer, any Guarantor and their Affiliates as though it was not the Collateral Agent ~~shall request direction from~~ hereunder and without notice to or consent of the ~~Majority~~ Trustee. The Trustee and the Holders ~~with respect~~ acknowledge that, pursuant to ~~any action~~such activities, the Collateral Agent ~~shall~~ or its Affiliates may receive information regarding the Issuer, any Guarantor or its Affiliates (including information that may be ~~entitled~~ subject to ~~refrain from taking~~ confidentiality obligations in favor of the Issuer, any such ~~action unless~~ Guarantor or such Affiliate) and ~~until the Collateral Agent shall have received direction from the Majority Holders, and~~ acknowledge that the Collateral Agent shall not incur liability to any Person by reason of so refraining. (F) 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 Majority Holders (subject to this Section 11.01(F)), subject to the terms of the Security Documents. (G) Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements, neither the Collateral Agent nor any of its respective officers, directors, employees or agents or other Affiliates 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~~ provide such information to the Trustee or the Holders. Nothing herein shall impose or imply any obligation on the part of the Collateral ~~or any part thereof~~Agent to advance funds. (He) The Collateral Agent is authorized and directed to (i) enter into the Security Documents, (ii) enter into the Intercreditor Agreement, (iii) enter into other customary intercreditor agreements or other lien acknowledgment agreements with respect to the assets of any Securitization Entity and related assets (including contract rights) that are sold under any Factoring Agreement or Qualified Securitization Transaction permitted under this Indenture, (iv) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreement and (v) perform and observe its obligations under the Security Documents and the Intercreditor Agreement. (f) 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 ~~Note Obligations arising under, or relating to, this Indenture~~Notes Obligations, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this ~~Indenture and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements~~Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 7Six, 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 such proceeds to be applied~~ Agent. Any funds held on deposit by the Collateral Agent ~~pursuant to the terms of~~ pending distribution shall be held on deposit under this ~~Indenture~~Indenture without investment, ~~the Security Documents~~ and ~~the Intercreditor Agreements. (I) Neither the Trustee nor~~ the Collateral Agent shall have no liability for interest or other compensation thereon. (g) The Trustee is each Holder’s agent for the purpose of perfecting the Holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code, can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof, and, promptly upon the Collateral Agent’s written request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (h) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders ~~or to the Trustee, in the case of the Collateral Agent,~~ to assure that the Collateral exists or is owned by the Issuer or any ~~Subsidiary~~ 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 of the Issuer’s or any ~~Subsidiary~~ Guarantor’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 ~~value,~~ genuineness, validity~~, ownership~~, 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 or the Intercreditor Agreements other than to exercise such rights, authorities and powers pursuant to the instructions of the Trustee or the Majority Holders or as otherwise provided in the Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, it being understood and agreed that in ~~no event shall the Collateral Agent or the Trustee 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 Agreements (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. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income thereon. 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, ~~including~~or any act, ~~without limitation~~omission, ~~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 be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (a “Security Document Order”)event related thereto, the Collateral Agent ~~is hereby authorized to execute and enter into, and shall execute and enter into, without the further consent of~~ may act in any ~~Holder or the Trustee, any Security Document to be executed after the Issue Date. Such Security Document Order shall~~ manner it may deem appropriate (i) state that it is being delivered to the Collateral Agent pursuant to, and is a Security Document Order referred to in, this Section 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that but in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. The Holders, through their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies accordance with the terms of ~~this Indenture and~~ the ~~Note Documents and that all covenants and conditions precedent~~Security Documents), if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in ~~no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects~~ its sole discretion given the Collateral Agent~~. The Holders, by their acceptance of the Notes, authorize and direct~~ ’s own interest in the Collateral ~~Agent to execute such intercreditor agreements~~ and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, 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 7.15 and the other provisions of this Indenture. (N) In acting under this Indenture or any other Note Document, that the Collateral Agent shall have ~~all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded~~ no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing. (~~including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance~~ i) No provision of ~~doubt~~this Indenture, the ~~rights, privileges, protections, immunities and benefits given~~ Intercreditor Agreement 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) unless the Collateral Agent shall have received indemnity and/or security by the Holders satisfactory to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of against potential costs and liabilities incurred by the Collateral ~~Agent, in such capacity. (O)~~ Agent relating thereto. Notwithstanding anything to the contrary contained in this Indenture, the Intercreditor ~~Agreements~~ 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 the ~~Mortgages~~ mortgages or take any such other action if the Collateral Agent has ~~reasonably~~ 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~~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 clause~~ above if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (Pj) The Collateral Agent does not assume any responsibility for any failure or delay in performance or any breach by the Issuer or any Guarantor under this Indenture, the Intercreditor Agreement and the Security Documents. The Collateral Agent shall not be responsible to the Holders or any other Person for any recitals, statements, information, representations or warranties contained in any Note Document or in any certificate, report, statement, or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Indenture, the Intercreditor Agreement or any Security Document; the execution, validity, genuineness, effectiveness or enforceability of the Intercreditor Agreement and any Security Document of any other party thereto; the genuineness, enforceability, collectability, value, sufficiency, location or existence of any Collateral, or the validity, effectiveness, enforceability, sufficiency, extent, perfection or priority of any Lien therein; the validity, enforceability or collectability of any Obligations; the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any obligor; or for any failure of any obligor to perform its Obligations under this Indenture, the Intercreditor Agreement or any Security Document. The Collateral Agent shall have no obligation to any Holder or any other Person to ascertain or inquire into the existence of any Default or Event of Default, the observance or performance by any obligor of any terms of this Indenture, the Intercreditor Agreement and the Security Documents, or the satisfaction of any conditions precedent contained in this Indenture, the Intercreditor Agreement and any Security Document. The Collateral Agent shall not be required to initiate or conduct any litigation or collection or other proceeding under this Indenture, the Intercreditor Agreement and the Security Documents unless expressly set forth hereunder or thereunder or if acting at the direction of the Trustee or Holders holding a majority in aggregate principal amount of the then outstanding Notes. The Collateral Agent shall have the right at any time to seek instructions from the Holders with respect to the administration of the Note Documents. Subject to the terms of the Security Documents, after the occurrence and during the continuance of an Event of Default, the Trustee may direct the Collateral Agent in connection with any action required or permitted by this Indenture, the Security Documents or the Intercreditor Agreement. (k) The parties hereto and the Holders hereby agree and acknowledge that ~~neither~~ the Collateral Agent ~~nor the Trustee~~ 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~~ 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 Agreements, 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 or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Ageor

Appears in 1 contract

Sources: Indenture (Manitowoc Co Inc)

Collateral Agent. (Aa) The ~~Issuer~~ Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Indenture, the Security Agreement, the Security Documents and the ~~Subsidiary Guarantors hereby appoint U.S. Bank Trust Company, National Association to act as Collateral Agent,~~ Intercreditor Agreement and the Trustee and each ~~Holder,~~ of the Holders by ~~its~~ acceptance of ~~any~~ the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Security Agreement, the Security Documents and the ~~Subsidiary Guarantees thereof~~Intercreditor Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture, ~~irrevocably consents~~ the Security Agreement, the Security Documents and ~~agrees to~~ the Intercreditor Agreement, together with such ~~appointment on its behalf~~powers as are reasonably incidental thereto. The Collateral Agent agrees to act as such on the express conditions contained in this Section 10.11. The provisions of this Section 10.11 are solely for the benefit of the Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the ~~privileges, powers and immunities~~ provisions contained herein other than as ~~set forth~~ expressly provided in ~~this Indenture and the Security Documents~~Section 10.03. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Security Agreement, the Security Documents or and the Intercreditor ~~Agreements~~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 Security Documents and the Intercreditor Agreements to which the Collateral Agent is a party~~herein, nor shall the Collateral Agent have or be deemed to have any ~~trust or other~~ fiduciary relationship with the Trustee, any ~~Holder, the Issuer~~ Holder or any ~~Subsidiary Guarantor~~Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Agreement, the Security Documents or and the Intercreditor ~~Agreements~~ Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties~~. (B) The Issuer and the Subsidiary Guarantors hereby agrees that~~ . Except as expressly otherwise provided in this Indenture, the Collateral Agent shall ~~hold~~ have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral ~~on behalf of and for the benefit of all of the Holders~~Agent is expressly entitled to take or assert under this Indenture, the ~~Trustee and the Collateral Agent~~Security Agreement, ~~in each case pursuant to, and in accordance with, the terms of~~ the Security Documents and the Intercreditor ~~Agreements~~ Agreement, including the exercise of remedies pursuant to Article VI, and ~~that the Collateral as now~~ any action so taken or ~~hereafter constituted~~ not taken shall be ~~held for~~ deemed consented to by the ~~benefit of all~~ Trustee and the Holders, the Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder. The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (C) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements. (Db) The Collateral Agent ~~shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor~~ may execute any of its ~~officers~~duties under this Indenture, ~~directors, employees or agents shall be responsible for any act or failure to act hereunder or under any~~ the Security Documents or the Intercreditor ~~Agreements~~ Agreement by or through agents, employees, attorneys-in-fact or through its Related Persons and shall be entitled to ~~which it is a party, except for its own gross negligence or willful misconduct~~advice of counsel concerning all matters pertaining to such duties. The Collateral Agent shall ~~have no liability~~ not be responsible for the negligence or misconduct of any agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made without negligence or willful misconduct. (c) None of the Collateral Agent, any of its respective Related Persons shall (i) be liable for any action ~~taken~~taken or omitted to be taken by 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 Security Agreement, any Security Document or Intercreditor Agreement or the transactions contemplated thereby (except for its own negligence or willful misconduct), or ~~errors~~ (ii) be responsible in ~~judgment made~~any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any Grantor or Affiliate of any Grantor, or any officer or Related Person thereof, contained in ~~good faith~~ this or any Indenture, or in any certificate, report, statement or other document referred to or provided for in, or received by it the Collateral Agent under or in connection with, this or any other Indenture, the Security Agreement, the Security Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this or any other Indenture, the Security Agreement, the Security Documents or the Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Security Agreement, the Security Documents or the Intercreditor Agreement to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its ~~officers~~respective Related Persons shall 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, ~~employees~~ or ~~agents~~conditions of, ~~unless it shall have been grossly negligent in ascertaining~~ this or any other Indenture, the ~~pertinent facts~~Security Agreement, the Security Documents or the Intercreditor Agreement or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates. (Ed) The Collateral Agent shall be entitled to ~~seek~~ rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex, or telephone message, statement, or other document or conversation believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to any Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall be fully justified in failing or refusing to take any action under this or any other Indenture, the Security Documents or the Intercreditor ~~Agreements~~ Agreement unless it shall first receive such advice or concurrence of the Trustee ~~or the Majority Holders~~ as it ~~determines~~ 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. ~~Except as otherwise provided in the Security Documents, the~~ The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this or any other Indenture, the Security Documents or the Intercreditor ~~Agreements~~ Agreement in accordance with a ~~request, direction, instruction~~ request or consent of the Trustee ~~or the Majority Holders~~ and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders~~. If the~~ . (e) The Collateral Agent shall ~~request direction from~~ not be deemed to have knowledge or notice of the ~~Majority Holders with respect to~~ occurrence of any ~~action~~Default or Event of Default, ~~the Collateral Agent shall be entitled to refrain from taking such action~~ unless ~~and until~~ the Collateral Agent shall have received ~~direction~~ written notice from the ~~Majority Holders~~Trustee or a Grantor referring to this Indenture, describing such Default or Event of Default and ~~the Collateral Agent shall not incur liability to any Person by reason~~ stating that such notice is a “notice of ~~so refraining~~default. ~~(F)~~ ” 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 Majority Holders~~ in accordance with Article VI (subject to ~~this~~ Section ~~11.01(F~~10.11)); provided, ~~subject to the terms of the Security Documents. (G) Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements~~however, ~~neither~~ that unless and until the Collateral Agent nor any of its respective officers, directors, employees or agents or other Affiliates 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. (H) 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 Note Obligations arising under, or relating to, this Indenture, except for has received any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements, 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 such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders or to the Trustee, in the case of the Collateral Agent, to assure that the Collateral exists or is owned by the Issuer or any Subsidiary 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 of the Issuer’s or any Subsidiary Guarantor’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 value, genuineness, validity, ownership, 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 or the Intercreditor Agreements other than to exercise such rights, authorities and powers pursuant to the instructions of the Trustee or the Majority Holders or as otherwise provided in the Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall the Collateral Agent or the Trustee 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 Agreements (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. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income thereon. 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, including, without limitation, 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 be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (a “Security Document Order”)request, the Collateral Agent ~~is hereby authorized~~ may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to ~~execute~~ such Default or Event of Default as it shall deem advisable. (f) U.S. Bank National Association and ~~enter into~~its respective Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and ~~shall execute~~ generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with any Grantor 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~~ its Affiliates as though it ~~is being delivered to~~ was not the Collateral Agent ~~pursuant to,~~ hereunder and ~~is a Security Document Order referred~~ without notice to in, this Section 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery or consent of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral AgentTrustee. The Holders, through their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders ~~distributed under the Security Documents~~ acknowledge that, pursuant to such activities, U.S. Bank National Association or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, 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 7.15 and the other provisions of this Indenture. (N) In acting under this Indenture its respective Affiliates may receive information regarding any Grantor or ~~any other Note Document, the Collateral Agent shall have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee~~ its Affiliates (including ~~its rights~~ information that may be subject to ~~be compensated, reimbursed~~ confidentiality obligations in favor of any such Grantor or such Affiliate) and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Collateral Agent, in such capacity. (O) 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 Collateral, acknowledge that the Collateral Agent shall not be ~~required~~ under any obligation to ~~commence~~ provide such information to the Trustee or the Holders. Nothing herein shall impose or imply any ~~such action or exercise any remedy or to inspect or conduct any studies of any property under~~ obligation on the ~~Mortgages or take any such other action if the Collateral Agent has reasonably determined that the Collateral Agent may incur personal liability as a result~~ part 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~~ U.S. Bank National Association to ~~cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient~~advance funds. (P) 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 Agreements, 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 or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Age

Appears in 1 contract

Sources: Indenture (Broan-NuTone LLC)

Collateral Agent. ~~(A)~~ The ~~Issuer and the Subsidiary Guarantors hereby appoint U.S. Bank Trust Company, National Association~~ Collateral Agent has been appointed to act as Collateral ~~Agent, and each Holder~~Agent hereunder by Lenders and, by ~~its~~ their acceptance of ~~any Notes and~~ the ~~Subsidiary Guarantees thereof~~benefits hereof, ~~irrevocably consents and agrees to such appointment on its behalf~~the other Secured Parties. The Collateral Agent shall be obligated, and shall have the ~~privileges~~right hereunder, ~~powers and immunities as set forth in this Indenture and the Security Documents. Notwithstanding~~ to make demands, to give notices, to exercise or refrain from exercising any provision to the contrary contained elsewhere in this Indenture, the Security Documents or the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in naturerights, and ~~the Collateral Agent shall not have~~ to take or refrain from taking any duties or responsibilities, except those expressly set forth herein and in the Security Documents and the Intercreditor Agreements to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, the Issuer or any Subsidiary Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents or the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. (B) The Issuer and the Subsidiary Guarantors hereby agrees that the Collateral Agent shall 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, and in accordance with, the terms of the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder. The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (C) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements action (including, without limitation, the ~~provisions providing for foreclosure, exercises of remedies and~~ release or substitution of Collateral~~) as the same may be in effect or may be amended from time to time~~ ), solely in accordance with ~~their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents~~ this Agreement and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements. (D) The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder or under any Security Documents or Intercreditor Agreements to which it is a party, except for its own gross negligence or willful misconduct. 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 been grossly negligent in ascertaining the pertinent facts. (E) The Collateral Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Majority Holders 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. Except as otherwise provided in the Security DocumentsCredit Agreement; provided, the Collateral Agent ~~shall~~ shall, after (x) payment in full of all ~~cases be fully protected in acting~~Obligations under the Credit Agreement and the other Credit Documents (other than contingent indemnification and reimbursement obligations for which no claim has been made) and (y) all Letters of Credit have been cancelled or have expired or have been Cash Collateralized or otherwise secured to the satisfaction of the Issuing Bank thereof, exercise, or ~~in refraining~~ refrain from ~~acting~~exercising, ~~under this Indenture, the Security Documents or the Intercreditor Agreements~~ any remedies provided for herein in accordance with ~~a request, direction, instruction or consent~~ the instructions of the ~~Trustee or the Majority Holders and such request and any action taken or failure to act pursuant thereto shall be binding upon all~~ holders of a majority of the ~~Holders. If the Collateral Agent shall request direction from the Majority Holders~~ aggregate notional amount (or, with respect to any ~~action~~Permitted Hedge Agreement that has been terminated in accordance with its terms, the ~~Collateral Agent shall be entitled to refrain from taking~~ amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such ~~action unless~~ Permitted Hedge Agreement) under all Permitted Hedge Agreements and ~~until~~ Permitted Cash Management Agreements. In furtherance of the ~~Collateral Agent~~ foregoing provisions of this Section, each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have ~~received direction from the Majority Holders, and the Collateral Agent shall not incur liability~~ no right individually to any Person by reason of so refraining. (F) 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 Majority Holders (subject to this Section 11.01(F)), subject to the terms of the Security Documents. (G) Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements, neither the Collateral Agent nor any of its respective officers, directors, employees or agents or other Affiliates 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. (H) If at any time or times the Trustee shall receive (i) hereunder, it being understood and agreed 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~~ Secured Party that all rights and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements, 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 remedies hereunder may be ~~required to negotiate the same to the Collateral Agent such proceeds to be applied~~ exercised solely by the Collateral Agent ~~pursuant to~~ for the ~~terms~~ benefit of ~~this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders or to the Trustee,~~ Secured Parties in the case of the Collateral Agent, to assure that the Collateral exists or is owned by the Issuer or any Subsidiary 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 of the Issuer’s or any Subsidiary Guarantor’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 value, genuineness, validity, ownership, 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 or the Intercreditor Agreements other than to exercise such rights, authorities and powers pursuant to the instructions of the Trustee or the Majority Holders or as otherwise provided in the Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall the Collateral Agent or the Trustee 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 Agreements (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. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income thereon. 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, including, without limitation, 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 be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. The Holders, through their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies accordance with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Section. Collateral Agent ~~to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into~~ may at any ~~intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance~~ time give notice of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and its resignation to the ~~extent not prohibited under the Intercreditor Agreements, for turnover to the Trustee to make further distributions of such funds to itself, the Trustee~~ Secured Parties and ~~the Holders~~ Company in accordance with ~~the provisions of~~ Section 7.15 and the other provisions of this Indenture. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal 9.6 of the ~~Collateral Agent, in such capacity~~Credit Agreement. (O) 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 Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (P) 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 Agreements, 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 or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Age

Appears in 1 contract

Sources: Pledge Agreement (Covanta Holding Corp)

Collateral Agent. (Aa) The ~~Issuer and the Subsidiary Guarantors hereby appoint U.S. Bank Trust Company, National Association to act as Collateral Agent,~~ Trustee and each ~~Holder,~~ of the Holders by ~~its~~ acceptance of ~~any~~ the Notes hereby designates and appoints the ~~Subsidiary Guarantees thereof, irrevocably consents and agrees to such appointment on its behalf. The~~ Collateral Agent ~~shall have the privileges, powers and immunities~~ as ~~set forth in~~ its agent under this Indenture and the Notes Security Documents and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture and the Notes Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Notes Security Documents, together with such powers as are reasonably incidental thereto. The provisions of this Section 11.11 are solely for the benefit of the Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 11.03. Notwithstanding any provision to the contrary contained elsewhere in this ~~Indenture~~Indenture and the Notes Security Documents, ~~the Security Documents or the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in nature, and~~ the Collateral Agent shall not have any duties or ~~responsibilities, except those expressly set forth herein and in the Security Documents and the Intercreditor Agreements to which the Collateral Agent is a party,~~ responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any ~~trust or other~~ fiduciary relationship with the Trustee, any ~~Holder, the Issuer~~ Holder or any ~~Subsidiary Guarantor~~Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this ~~Indenture,~~ Indenture and the Notes Security Documents ~~or the Intercreditor Agreements~~ or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. Except as expressly otherwise provided in this Indenture, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Indenture, and the Notes Security Documents, including the exercise of remedies pursuant to Article 6, and any action so taken or not taken shall be deemed consented to by the Trustee and the Holders. (Bb) None of the Collateral Agent or any of its respective Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct as finally adjudicated by a court of competent jurisdiction) or under or in connection with any Notes Security Document or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company or any Grantor or Affiliate of any Grantor, or any officer or Affiliate thereof, contained in this or any Indenture, any Notes Security Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this or any other Indenture or the Notes Security Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this or any other Indenture or the Notes Security Documents, or for any failure of any Grantor or any other party to this Indenture or the Notes Security Documents to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective Affiliates shall be under any obligation to the 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 or any other Indenture or the Notes Security Documents or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates. (c) The ~~Issuer~~ Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Company, any Subsidiary Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Trustee. The Trustee and the ~~Subsidiary Guarantors hereby agrees~~ Holders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding any Grantor or its respective Affiliates (including information that may be subject to confidentiality obligations in favor of, any such Grantor or such Affiliate) and acknowledge that the Collateral Agent shall ~~hold~~ not be under any obligation to provide such information to the ~~Collateral on behalf of and for the benefit of all of~~ Trustee or the Holders, . Nothing herein shall impose or imply any obligation on the ~~Trustee and the Collateral Agent, in each case pursuant to, and in accordance with, the terms~~ part of ~~the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders,~~ the Collateral Agent ~~and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject~~ to ~~and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder.~~ advance funds. (d) The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof authorized and ~~promptly shall deliver such Collateral~~ directed to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (C) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Notes Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewithDocuments, (ii~~) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii~~) bind the Holders on the terms as set forth in the Notes Security Documents and (iii) perform and observe its obligations under the Intercreditor Agreements. (D) The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder or under any Security Documents or Intercreditor Agreements to which it is a party, except for its own gross negligence or willful misconduct. 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 been grossly negligent in ascertaining the pertinent facts. (E) The Collateral Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Majority Holders 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. Except as otherwise provided in the Security Documents, the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent of the Trustee or the Majority Holders and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders. If the Collateral Agent shall request direction from the Majority Holders with respect to any action, the Collateral Agent shall be entitled to refrain from taking such action unless and until the Collateral Agent shall have received direction from the Majority Holders, and the Collateral Agent shall not incur liability to any Person by reason of so refraining. (F) 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 Majority Holders (subject to this Section 11.01(F)), subject to the terms of the Notes Security Documents. (Ge) ~~Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements~~The Trustee agrees that it shall not (and shall not be obligated to), ~~neither~~ and shall not instruct the Collateral Agent ~~nor~~ to, unless specifically requested to do so by a majority of the Holders, take or cause to be taken any action to enforce its rights under this Indenture or against any Grantor, including the commencement of ~~its respective officers~~any legal or equitable proceedings, ~~directors~~to foreclose any Lien on, ~~employees~~ or ~~agents or other Affiliates shall be liable for failure to demand~~otherwise enforce any security interest in, ~~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. (H) Collateral. 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 ~~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 and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements~~Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 76, 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. (f) The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such ~~proceeds to be applied by~~ Collateral, upon request from the Company, the Trustee shall notify the Collateral Agent ~~pursuant~~ thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. If required for the purpose of meeting the legal requirements of any jurisdiction in which any of the Collateral may at the time be located, subject to the terms of ~~this Indenture~~the Notes Security Documents, the ~~Security Documents and the Intercreditor Agreements. (I) Neither~~ Company, the Trustee ~~nor~~ and the Collateral Agent shall have the power to appoint, and shall take all reasonable action to appoint, one or more Persons approved by the Company to act as co-collateral agent with respect to any such Collateral, with such rights and powers limited to those deemed necessary for the Company, the Trustee or the Collateral Agent to comply with any such legal requirements with respect to such Collateral, and which rights and powers shall not be inconsistent with the provisions of this Indenture. (g) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders ~~or to the Trustee, in the case of the Collateral Agent,~~ to assure that the Collateral exists or is owned by ~~the Issuer or~~ any ~~Subsidiary Guarantor~~ Grantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of or the ~~Issuer’s~~ Company or any Subsidiary Guarantor’s property constituting ~~Collateral~~ collateral intended to be subject to the Lien and security interest of the Notes Security Documents has been properly and completely listed or delivered, as the case may be, or the ~~value,~~ genuineness, validity~~, ownership~~, 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 or the Intercreditor Agreements other than to exercise such rights, authorities and powers pursuant to the instructions of the Trustee or the Majority Holders or as otherwise provided in the Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or any Notes Security Document, it being understood and agreed that in ~~any Security Document or any Intercreditor Agreement, in no event shall the Collateral Agent or the Trustee 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 Agreements (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. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income thereon. 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, ~~including~~or any act, ~~without limitation~~omission, ~~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 be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (a “Security Document Order”)event related thereto, the Collateral Agent ~~is hereby authorized to execute and enter into~~may act in any manner it may deem appropriate, 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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in ~~no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects~~ its sole discretion given the Collateral Agent~~. The Holders, through their acceptance of the Notes, hereby authorize and direct~~ ’s own interest in the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, 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 7.15 and the other provisions of this Indenture. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have ~~all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded~~ no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing. (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination h) No provision of this Indenture or any Notes Security Document shall require the Collateral Agent (or the Trustee) to expend or risk its ~~earlier termination, resignation~~ own funds or ~~removal~~ 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~~, in~~ ) if it shall have reasonable grounds for believing that repayment of such ~~capacity~~funds is not assured to it. (Oi) ~~Notwithstanding anything~~ The Collateral Agent (i) shall not be liable for any action it takes or omits to ~~the contrary contained~~ take in ~~this Indenture~~good faith which it reasonably believes to be authorized or within its rights or powers, ~~the Intercreditor Agreements~~ or ~~the Security Documents~~for any error of judgment made in good faith by a Responsible Officer, ~~in the event~~ unless it is proved that the Collateral Agent ~~is entitled~~ was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the 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 ~~required~~ opinion of such counsel as to ~~commence an~~ matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to ~~foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral,~~ the Collateral Agent shall not be ~~required~~ construed to ~~commence any such action or exercise any remedy or~~ impose duties to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficientact. (Pj) ~~The parties hereto and the Holders hereby agree and acknowledge that neither~~ Neither the Collateral Agent nor the Trustee shall ~~assume~~be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Trustee shall be ~~responsible for or otherwise be obligated~~ liable for any ~~liabilities~~indirect, ~~claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements,~~ special or consequential damages (~~including foreseeable and unforeseeable), judgments, expenses and costs (including~~ included 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 personalto lost profits) ~~of any kind~~ whatsoever, pursuant to any environmental law as a result of this Indenture, the Intercreditor Agreements, 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 or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest even if it has been informed of the ~~Collateral Age~~likelihood thereof and regardless of the form of action.

Appears in 1 contract

Sources: Indenture (LSC Communications, Inc.)

Collateral Agent. (Aa) ~~The Issuer~~ Each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its collateral agent under this Indenture and the ~~Subsidiary Guarantors hereby appoint U.S. Bank Trust Company, National Association to act as Collateral Agent,~~ Security Documents and each ~~Holder,~~ of the Holders by ~~its~~ acceptance of ~~any~~ the Notes hereby authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture and the ~~Subsidiary Guarantees thereof~~Security Documents and to exercise such powers and perform such duties as are expressly required, ~~irrevocably consents and agrees~~ permitted or delegated to ~~such appointment on its behalf. The~~ the Collateral Agent ~~shall have~~ by the ~~privileges, powers and immunities as set forth in~~ terms of this Indenture and the Security Documents, together with such powers as are reasonably incidental thereto. ~~Notwithstanding~~ The Collateral Agent agrees to act as such on the express conditions contained in this Section 11.07. The provisions of this Section 11.07 are solely for the benefit of the Collateral Agent and none of the Trustee, any of the Holders nor the Company or any Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 11.03. Not- withstanding any provision to the contrary contained elsewhere in this ~~Indenture,~~ Indenture and the Security ~~Documents or the Intercreditor Agreements~~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 Security Documents and the Intercreditor Agreements to which the Collateral Agent is a party~~herein, nor shall the Collateral Agent have or be deemed to have any ~~trust or other~~ fiduciary relationship with the Trustee, any ~~Holder,~~ Holder or the ~~Issuer~~ Company or any ~~Subsidiary~~ Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this ~~Indenture,~~ Indenture and the Security Documents ~~or the Intercreditor Agreements~~ or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is shall not ~~intended~~ be construed to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties~~. (B)~~ . The ~~Issuer and~~ Collateral Agent may and, upon direction from the ~~Subsidiary Guarantors hereby agrees that~~ Trustee or the requisite Holders as provided hereunder or under a Security Document, shall exercise or refrain from exercising such discretionary rights, or take or refrain from taking such actions which the Collateral Agent is expressly entitled to take 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 ~~hold the Collateral on behalf of and for the benefit of all of the Holders,~~ be deemed consented to by the Trustee and the Collateral Agent, in each case pursuant to, and in accordance with, the terms of the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders~~, the~~ . (b) The Collateral Agent ~~and the Trustee, and that the Lien~~ may execute any of its duties under this Indenture and the Security Documents ~~in respect~~ by or through agents, employees or attorneys-in-fact and shall be entitled to advice of ~~the Trustee, the Collateral Agent and the Holders is subject~~ counsel concerning all matters pertaining to ~~and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder~~such duties. The Collateral Agent ~~is each Holder’s agent~~ shall not be responsible for the ~~purpose of perfecting the Holders’ security interest in the Collateral which~~bad faith, ~~in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession~~ negligence or misconduct of any agent, employee or attorney-in-fact that it selects as long as such ~~Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to~~ selection was made with due care. (c) None of the Collateral Agent or ~~otherwise deal~~ any of its agents or employees shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with ~~such Collateral~~ this Indenture or the transactions contemplated hereby (except for its own bad faith, gross negligence or willful misconduct) or under or in ~~accordance~~ connection with any Security Document or the transactions contemplated thereby (except for its own bad faith, gross negligence or willful misconduct), or (ii) be responsible in any manner to the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company or any Guarantor, contained in this Indenture or any indenture, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral ~~Agent’s instructions. (C) Each Holder~~Agent under or in connection with, ~~by its acceptance~~ this Indenture or any other indenture, the Security Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture or any ~~Notes and~~ other indenture or the ~~Subsidiary Guarantees thereof~~Security Documents, ~~irrevocably consents and agrees~~ or for any failure of the Company or any Guarantor or any other party to ~~the terms of~~ this Indenture or the Security Documents ~~and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect~~ to perform its obligations hereunder or ~~may be amended from time to time in accordance with their terms, agrees to the appointment~~ thereunder. None of the Collateral Agent ~~and authorizes and directs~~ or any of its agents or employees shall 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 or any other indenture or the Security Documents or to inspect the properties, books or records of the Company or any Guarantor. (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 (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements. (D) The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder or under any Security Documents or Intercreditor Agreements to which it is a party, except for its own gross negligence or willful misconduct. 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 been grossly negligent in ascertaining the pertinent facts. (E) The Collateral Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of received written notice from the Trustee or the ~~Majority Holders as it determines and, if it so requests, it shall first be indemnified~~ Company referring 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. Except as otherwise provided in the Security Documents, the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, ~~the Security Documents~~ describing such Default or ~~the Intercreditor Agreements in accordance with~~ Event of Default and stating that such notice is a ~~request, direction, instruction~~ “notice of default” or ~~consent~~ (ii) a Responsible Officer has actual knowledge of the ~~Trustee~~ occurrence of such Default or ~~the Majority Holders and such request and any action taken or failure to act pursuant thereto shall be binding upon all~~ Event of ~~the Holders~~Default. If the Collateral Agent shall request direction from the Majority Holders with respect to any action, the Collateral Agent shall be entitled to refrain from taking such action unless and until the Collateral Agent shall have received direction from the Majority Holders, and the Collateral Agent shall not incur liability to any Person by reason of so refraining. (F) 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 Majority Holders~~ in accordance with Article Six (subject to this Section ~~11.01(F)), subject to~~ 11.07) or the ~~terms of~~ Holders as provided in the Security Documents; provided, however, that unless and until the Collateral Agent has received any such request, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable. (Ge) A resignation or removal of the Collateral Agent and appointment of a successor Collateral Agent shall become effective only upon the successor Collateral Agent’s acceptance of appointment as provided in this Section 11.07(e). The Collateral Agent may resign in writing at any time by so notifying the Company, the Trustee and each trustee, agent or representative of holders of Permitted Additional Pari Passu Obligations at least 30 days prior to the proposed date of resignation. The Company may remove the Collateral Agent if: (i) the Collateral Agent is removed as Trustee under this Indenture; (ii) the Collateral Agent (x) fails to meet the requirements for being a Trustee under Section 7.10 (prior to the discharge or defeasance of this Indenture) and (y) following the discharge or defeasance of this Indenture, 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 Company shall promptly appoint a successor Collateral Agent which complies with the eligibility requirements contained in this Indenture and each indenture, credit agreement or other agreements which any Permitted Additional Pari Passu Obligations (other than Additional Notes) are incurred. If a successor Collateral Agent does not take office within 10 days after the retiring Collateral Agent resigns or is removed, the retiring Collateral Agent, the Company or the holders of at least 10% in principal amount of the then outstanding principal amount of (x) the Notes (other than any Additional Notes except to the extent constituting Permitted Additional Pari Passu Obligations) and (y) Permitted Additional Pari Passu Obligations (to the extent the trustee, agent or representative of holders of such Permitted Additional Pari Passu Obligations executed a joinder to the Security Agreement) may petition any court of competent jurisdiction for the appointment of a successor Collateral Agent. A successor Collateral Agent shall deliver a written acceptance of its appointment to the retiring Collateral Agent and to the Company. Thereupon, the resignation or removal of the retiring Collateral Agent shall become effective, and the successor Collateral Agent shall have all the rights, powers and the duties of the Collateral Agent under this Indenture and the Security Documents. The successor Collateral Agent shall mail a notice of its succession to the Trustee and each trustee, agent or representative of holders of Permitted Additional Pari Passu Obligations. The retiring Collateral Agent shall promptly transfer all property held by it as Collateral Agent to the successor Collateral Agent, provided that all sums owing to the Collateral Agent hereunder have been paid. Notwithstanding replacement of the Collateral Agent pursuant to this Section 11.07(e), the Company’s obligations under this Section 11.07 and Section 11.12 shall continue for the benefit of the retiring Collateral Agent. If the Collateral Agent resigns or is removed, such resignation or removal will not constitute a resignation or removal of the Trustee hereunder (unless the Trustee resigns or is otherwise removed pursuant to Section 7.08). (f) The Trustee shall initially act as Collateral Agent and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Security ~~Documents or the Intercreditor Agreements~~Documents, neither the Collateral Agent nor any of its ~~respective~~ officers, directors, employees or agents ~~or other Affiliates~~ 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. (H) 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 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 and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements, 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 such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders or to the Trustee, in the case of the Collateral Agent, to assure that the Collateral exists or is owned by the Issuer or any Subsidiary 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 of the Issuer’s or any Subsidiary Guarantor’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 value, genuineness, validity, ownership, 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 or the Intercreditor Agreements other than to exercise such rights, authorities and powers pursuant to the instructions of the Trustee or the Majority Holders or as otherwise provided in the Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall the Collateral Agent or the Trustee 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 Agreements (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. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income thereon. 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~~ accountable only for its own benefit and shall not be liable or responsible for any loss or diminution in value of any of the Collateral, including, without limitation, 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 be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (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 amounts that it is being delivered to the Collateral Agent pursuant to, and is a Security Document Order referred to in, this Section 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. The Holders, through their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, 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 7.15 and the other provisions of this Indenture. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Collateral Agent, in such capacity. (O) 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 Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Collateral Agent has reasonably determined that the Collateral Agent may incur personal liability actually receives as a result of the ~~presence at~~exercise of such powers, 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (P) The parties hereto and ~~the Holders hereby agree and acknowledge that~~ neither the Collateral Agent nor ~~the Trustee~~ any of its officers, directors, employees or agents shall ~~assume,~~ be responsible for any act or ~~otherwise be obligated~~ failure to act hereunder, except for ~~any liabilities~~its own willful misconduct, 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 gross negligence 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, 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 or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Agebad faith.

Appears in 1 contract

Sources: Indenture (Exide Technologies)

Collateral Agent. (Aa) ~~The Issuer and the Subsidiary Guarantors hereby appoint U.S. Bank Trust Company, National Association to~~ [·] shall initially act as Collateral ~~Agent~~Agent and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements, ~~and each Holder~~neither the Collateral Agent nor any of its officers, ~~by its acceptance~~ directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Notes Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Notes ~~and~~ Collateral upon the ~~Subsidiary Guarantees~~ request of any other Person or to take any other action whatsoever with regard to the Notes Collateral or any part thereof~~, irrevocably consents and agrees to such appointment on its behalf. The Collateral Agent shall have the privileges, powers and immunities as set forth in this Indenture and the Security Documents~~. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the ~~Security Documents~~ Intercreditor Agreements or the ~~Intercreditor Agreements~~Security 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~~ in this Indenture, in the Intercreditor Agreements and in the Security Documents ~~and the Intercreditor Agreements~~ to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, the Issuer or any ~~Subsidiary~~ Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Intercreditor Agreements or the Security Documents or ~~the Intercreditor Agreements or~~ shall otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” or “Agent” in this ~~Indenture~~ Indenture, the Intercreditor Agreements and the Security Documents with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market ~~custom,~~ custom and is intended to create or reflect only an administrative relationship between independent contracting parties. (B) The Issuer and the Subsidiary Guarantors hereby agrees that the Collateral Agent shall 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, and in accordance with, the terms of the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder. The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (C) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements. (D) The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act ~~hereunder or under any Security Documents or Intercreditor Agreements to which it is a party~~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 ~~willful misconduct~~any Guarantors Incur any obligations in respect of any First Priority Lien Obligations at any time when no intercreditor agreement with respect thereto is in effect or at any time when Indebtedness constituting First Priority Lien Obligations entitled to the benefit of an existing intercreditor agreement is concurrently retired, the Issuer shall deliver to the Collateral Agent an Officers’ Certificate so stating and requesting the Collateral Agent to enter into an Intercreditor Agreement in favor of a designated agent or representative for the holders of the First Priority Lien Obligations so Incurred, and the Trustee and the Collateral Agent shall (and are hereby authorized and directed to) enter into such Intercreditor Agreement, bind the Holders on the terms set forth therein and perform and observe their obligations thereunder. (d) The Collateral Agent shall act pursuant to the instructions of the Holders and the Trustee with respect to the Security Documents and the Notes Collateral. ~~The~~ For the avoidance of doubt, the Collateral Agent shall have no ~~liability for~~ discretion under this Indenture, the Intercreditor Agreements or the Security Documents and shall not be required to make or give any determination, consent, approval, request or direction without the written direction of the requisite Holders or the Trustee, as applicable. After the occurrence of an Event of Default, the Trustee may direct the Collateral Agent in connection with any action ~~taken,~~ required or ~~errors in judgment made, in good faith~~ permitted by it or any of its officers, employees or agents, unless it shall have been grossly negligent in ascertaining the pertinent facts. (E) The Collateral Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Majority Holders 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. Except as otherwise provided in the Security Documents, the Agreements. (e) The Collateral Agent shall ~~in all cases~~ not be ~~fully protected in acting,~~ deemed to have knowledge or ~~in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent~~ notice of the ~~Trustee~~ occurrence of any Default or ~~the Majority Holders and such request and any action taken or failure to act pursuant thereto shall be binding upon all~~ Event of ~~the Holders. If the Collateral Agent shall request direction from the Majority Holders with respect to any action~~Default, ~~the Collateral Agent shall be entitled to refrain from taking such action~~ unless ~~and until~~ the Collateral Agent shall have received ~~direction~~ written notice from the ~~Majority Holders~~Trustee, a Holder or the Issuer referring to this Indenture, describing such Default or Event of Default and ~~the Collateral Agent shall not incur liability to any Person by reason~~ stating that such notice is a “notice of ~~so refraining. (F)~~ 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 ~~Majority~~ Holders (of a majority in aggregate principal amount of the Securities subject to this ~~Section 11.01(F)), subject to the terms of the Security Documents~~Article 11. (Gf) ~~Except as otherwise explicitly provided herein~~ No provision of this Indenture or ~~in the~~ any Security ~~Documents or the Intercreditor Agreements, neither~~ Document shall require the Collateral Agent ~~nor~~ (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its ~~respective officers, directors, employees~~ duties hereunder or agents or other Affiliates 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 thereunder or to take or omit to take any ~~other~~ action ~~whatsoever with regard to~~ hereunder or thereunder or take any action at the ~~Collateral~~ request or ~~any part thereof.~~ direction of Holders (~~H) 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 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 and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements, 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 such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders or to 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 ~~assure~~ 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 ~~exists or is owned by~~ Agent may incur personal liability as a result of the ~~Issuer or any Subsidiary Guarantor or is cared for, protected~~presence at, or ~~insured~~ release on or ~~has been encumbered~~from, the Notes Collateral or ~~that~~ such property of any hazardous substances unless the Collateral ~~Agent’s Liens have been properly~~ Agent has received security or ~~sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether~~ indemnity from the Holders in an amount and in a form all of the Issuer’s or any Subsidiary Guarantor’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 value, genuineness, validity, ownership, 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 satisfactory to the Collateral Agent ~~pursuant~~ 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 ~~Indenture~~Section 11.09(f) if it no longer reasonably deems any indemnity, ~~any Security Document~~ security or undertaking from the Issuer or the ~~Intercreditor Agreements other than~~ Holders to ~~exercise such rights, authorities and powers pursuant~~ be sufficient. (g) The Collateral Agent shall not be responsible in any manner to ~~the instructions~~ any of the Trustee or any Holder for the ~~Majority Holders~~ validity, effectiveness, genuineness, enforceability or as otherwise provided in the Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall the Collateral Agent or the Trustee be responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance sufficiency of ~~the security interests or Liens intended to be created by~~ this Indenture, the Security Documents or the Intercreditor Agreements ~~(including without limitation~~ or for any failure of the ~~filing~~ Issuer, any Guarantor or ~~continuation of~~ any ~~Uniform Commercial Code financing or continuation statements or similar documents or instruments)~~other party to this Indenture, ~~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~~ Intercreditor Agreements to perform its obligations hereunder or ~~Liens intended to be created thereby. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income thereon~~thereunder. 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~~ under any obligation to the Trustee or ~~responsible for~~ any ~~loss~~ Holder to ascertain or ~~diminution in value~~ to inquire as to the observance or performance of any of the ~~Collateral~~agreements contained in, ~~including~~or conditions of, ~~without limitation~~this Indenture, ~~by reason~~ the Security Documents or the Intercreditor Agreements or to inspect the properties, books or records of the ~~act~~ Issuer or ~~omission~~ 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 ~~carrier~~kind whatsoever, ~~forwarding agency~~ pursuant to any environmental law as a result of this Indenture, the Intercreditor Agreements or ~~other agent~~ the Security Documents or ~~bailee selected~~ any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that, in the exercise of its rights under this Indenture, the Intercreditor Agreements and the Security Documents, the Collateral Agent may 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 ~~good faith. The Collateral Agent shall be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit~~the management of such Notes Collateral. (Ki) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by ~~an Officer~~ 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 ~~11.01(K),~~ 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 ~~(iii) certify~~ expense of the Issuer, upon delivery to the Collateral Agent of an Officers’ Certificate and an Opinion of Counsel stating that all ~~covenants and~~ conditions ~~precedent, if any~~ precedent to the execution and delivery of ~~the~~ such Security Document have been ~~compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent~~satisfied. The Holders, ~~through~~ by their acceptance of the ~~Notes~~Securities, hereby authorize and direct the Collateral Agent to execute such Security Documents. (Lj) ~~Upon receipt~~ The Collateral Agent’s resignation or removal shall be governed by ~~the Collateral Agent of a Security Document Order, the Collateral Agent is hereby authorized~~ provisions equivalent to execute and enter into, and shall execute and enter into, without the further consent of any Holder or the Trustee, any Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section ~~11.01(L~~7.07(a), Section 7.07(b), Section 7.07(c), Section 7.07(d) and Section 7.07(f). (iik) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The ~~Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the~~ Collateral Agent shall be entitled to ~~conclusively rely on~~ 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 ~~Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents~~ or ~~the Intercreditor Agreements and to the extent not prohibited under~~ the Intercreditor Agreements, 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 7.15 and the other provisions of this Indenturewhether or not expressly stated therein. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Collateral Agent, in such capacity. (O) 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 Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (P) 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 Agreements, 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 or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Age

Appears in 1 contract

Sources: Indenture (Egalet Us Inc.)

Collateral Agent. ~~(A) The Issuer~~ Each Holder hereby irrevocably designates and appoints the Collateral Agent as the collateral agent under this Agreement and the ~~Subsidiary Guarantors hereby appoint U.S. Bank Trust Company~~Notes Documents, ~~National Association to act as~~ and each such Holder irrevocably authorizes the Collateral Agent, ~~and each Holder~~in such capacity, by to take such action on its ~~acceptance~~ behalf under the provisions of ~~any Notes~~ this Agreement and the ~~Subsidiary Guarantees thereof, irrevocably consents~~ Notes Documents and ~~agrees~~ to exercise such ~~appointment on its behalf. The~~ powers and perform such duties as are expressly delegated to the Collateral Agent ~~shall have~~ by the ~~privileges, powers and immunities as set forth in~~ terms of this ~~Indenture~~ Agreement and the ~~Security~~ Notes Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary ~~contained~~ elsewhere in this ~~Indenture~~Agreement, ~~the Security Documents or the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in nature, and~~ the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein ~~and~~ or in the ~~Security Documents and the Intercreditor Agreements to which the Collateral Agent is a party~~Notes Documents, ~~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 Subsidiary Guarantor~~, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this ~~Indenture, the Security Documents~~ Agreement or the ~~Intercreditor Agreements~~ Notes Documents or otherwise exist against the Collateral Agent. In furtherance of the foregoing, each Holder hereby appoints and authorizes the Collateral Agent to act as the agent of such Holder for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by the Company or any Subsidiary to secure any of the obligations owing under this Agreement or the Notes Documents, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Collateral Agent shall be entitled to the benefits of this Section 6. The Collateral Agent may execute any of its duties under this Agreement and 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 co-agents, collateral subagents or attorneys-in-fact (each, a “Subagent”) with respect to all or any part of the Collateral; provided, that no such Subagent shall be authorized to take any action with respect to any Collateral unless and except to the extent expressly authorized in writing by the Collateral Agent. Should any instrument in writing from the Company or any Subsidiary be required by any Subagent so appointed by the Collateral Agent 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, agents, attorneys-in-fact or affiliates be (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 extent 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, enforceability or sufficiency of this Agreement or any other Notes Document or for any failure of the Company or any Subsidiary a party thereto to perform its obligations hereunder or thereunder. The Collateral Agent shall not be under any obligation to any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Notes Document, or to inspect the properties, books or records of the Company or any Subsidiary. The Collateral Agent shall not have any duties or obligations except those expressly set forth herein and in the other Notes Documents. Without limiting the generality of the ~~foregoing sentence~~foregoing, ~~the use of the term “agent” in this Indenture with reference to~~ (a) the Collateral Agent is shall not ~~intended~~ be subject to ~~connote~~ any fiduciary or other implied (duties, regardless of whether a Default or ~~express) obligations arising under agency doctrine~~ Event of ~~any applicable law. Instead, such term~~ Default has occurred and is ~~used merely as a matter of market custom~~continuing, and ~~is intended to create or reflect only an administrative relationship between independent contracting parties.~~ (Bb) ~~The Issuer and the Subsidiary Guarantors hereby agrees that~~ the Collateral Agent shall ~~hold~~ not, except as expressly set forth herein and in the ~~Collateral on behalf of~~ other Notes Documents, have any duty to disclose, and shall not be liable for the ~~benefit~~ failure to disclose, any information relating to the Company or any of ~~all of the Holders, the Trustee and the Collateral Agent, in each case pursuant to, and in accordance with, the terms of the Security Documents and the Intercreditor Agreements and~~ its Affiliates that ~~the Collateral as now~~ is communicated to or hereafter constituted shall be held for the benefit of all the Holders, the Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects obtained by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder. The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (C) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements. (D) The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor any of its ~~officers, directors, employees or agents shall be responsible for~~ Affiliates in any ~~act or failure to act hereunder or under any Security Documents or Intercreditor Agreements to which it is a party, except for its own gross negligence or willful misconduct~~capacity. The Collateral Agent shall not be deemed to have ~~no liability~~ knowledge of any Default or Event of Default unless and until written notice describing such Default or Event of Default is given to the Collateral Agent by the Company or a Holder. The Collateral Agent shall not be responsible for or have any ~~action taken~~duty to 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 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 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 ~~errors~~ the creation, perfection or priority of any Lien purported to be created by the Notes Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in ~~judgment made~~Section 4 or 4A or elsewhere herein, ~~in good faith by it or any~~ other than to confirm receipt of ~~its officers, employees or agents, unless it shall have been grossly negligent in ascertaining~~ items expressly required to be delivered to the ~~pertinent facts. (E)~~ Collateral Agent. The Collateral Agent shall be entitled to ~~seek~~ 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. 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, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (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 ~~Indenture, the Security Documents~~ Agreement or ~~the Intercreditor Agreements~~ any other Notes Document unless it shall first receive such advice or concurrence of the ~~Trustee or the Majority~~ Required Holders as it ~~determines and, if it so requests,~~ deems appropriate or it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense ~~which~~ that may be incurred by it by reason of taking or continuing to take any such action. ~~Except as otherwise provided in the Security Documents, the~~ The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this ~~Indenture,~~ Agreement and the ~~Security~~ other Notes Documents ~~or the Intercreditor Agreements~~ in accordance with a ~~request, direction, instruction or consent~~ request of the ~~Trustee or~~ Required Holders (or, if so specified by this Agreement, all of the ~~Majority Holders~~ 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. If 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 request direction~~ has received written notice from a Holder or the ~~Majority Holders with respect~~ Company referring to ~~any action~~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 ~~be entitled~~ give notice thereof to ~~refrain from taking such action unless and until~~ the ~~Collateral Agent shall have received direction from the Majority~~ Holders~~, and the Collateral Agent shall not incur liability to any Person by reason of so refraining. (F)~~ . The Collateral Agent shall take such action with respect to such Default or Event of Default as ~~may~~ shall be ~~requested~~ reasonably directed by the ~~Trustee or the Majority~~ Required Holders (~~subject to~~ or, if so specified by this ~~Section 11.01(F))~~Agreement, ~~subject to the terms~~ all of the ~~Security Documents.~~ Holders); provided, that unless and until the Collateral Agent shall have received such directions, the Collateral Agent may (Gbut shall not be obligated to) ~~Except~~ take such action, or refrain from taking such action, with respect to such Default or Event of Default as ~~otherwise explicitly provided herein or~~ it shall deem advisable in the ~~Security Documents or~~ best interests of the ~~Intercreditor Agreements,~~ Holders. Each Holder expressly acknowledges that neither the Collateral Agent nor any of its ~~respective~~ officers, directors, ~~employees~~ employees, agents, attorneys-in-fact or ~~agents~~ 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 ~~Affiliates~~ 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 or any Subsidiary and without limiting the obligation of the Company or any Subsidiary to do so), in the amount of its pro rata share of Notes (determined at the time such indemnity is sought), 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 payment of the Notes) be imposed on, incurred by or asserted against the Collateral Agent in any way relating to or arising out of this Agreement, any of the other Notes Documents or any documents 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 under or in connection with any of the foregoing; provided, that no Holder 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~~ payment of any ~~Collateral upon the request~~ portion of ~~any other Person~~ 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 take any other action whatsoever with regard to the Collateral or any part thereof. (H) 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 Note Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee have resulted from the Collateral ~~Agent pursuant~~ Agent’s gross negligence, willful misconduct or bad faith. The failure of any Holder to ~~the terms of this Indenture and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements, or (ii) payments from~~ reimburse the Collateral Agent ~~in excess~~ promptly upon demand for its ratable share of ~~the~~ any amount required to be paid by the Holders as provided herein shall not relieve any other Holder of its obligation hereunder 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~~ reimburse the Collateral Agent for its ratable share of such ~~proceeds~~ amount, but no Holder shall be responsible for the failure of any other Holder to ~~be applied by~~ reimburse the Collateral Agent ~~pursuant to~~ for such other Holder’ ratable share of such amount. The agreements in this Section shall survive the ~~terms of this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any~~ payment of the Holders or to the Trustee, in the case of the Collateral Agent, to assure that the Collateral exists or is owned by the Issuer or any Subsidiary 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 Notes and all of the Issuer’s or any Subsidiary Guarantor’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 value, genuineness, validity, ownership, 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 or the Intercreditor Agreements other than to exercise such rights, authorities and powers pursuant to the instructions of the Trustee or the Majority Holders or as otherwise provided in the Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall the Collateral Agent or the Trustee 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 Agreements (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. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income thereonamounts payable hereunder. The Collateral Agent ~~shall be deemed to have exercised reasonable care~~ and its affiliates may make loans to, accept deposits from, and generally engage in any kind of business with the ~~custody of Collateral in~~ Company and 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, including, without limitation, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by Subsidiaries as though the Collateral Agent ~~in good faith. The Collateral Agent shall be permitted to use overnight carriers to transmit possessory collateral and shall be~~ were not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. ~~The Holders, through their acceptance of the~~ With respect to its Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, 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 7.15 and the other provisions of this Indenture. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have ~~all~~ the same rights and ~~protections provided hereunder~~ powers under this Agreement and in the ~~Note~~ other Notes Documents as ~~well~~ any other Holder and may exercise the same as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of though it were not the Collateral Agent, ~~in such capacity. (O) Notwithstanding anything to~~ and the ~~contrary contained in this Indenture, the Intercreditor Agreements or the Security Documents, in the event~~ term “Holder” shall include the Collateral Agent ~~is entitled or required to commence an action to foreclose or otherwise exercise~~ in its remedies to acquire control or possession of the Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficientindividual capacity. (P) 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 Agreements, 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 or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Age

Appears in 1 contract

Sources: Note and Warrant Purchase Agreement (Ocwen Financial Corp)

Collateral Agent. ~~(A)~~ The ~~Issuer and the Subsidiary Guarantors hereby appoint U.S. Bank Trust Company, National Association~~ Collateral Agent has been appointed to act as Collateral ~~Agent, and each Holder~~Agent hereunder by Lenders and, by ~~its~~ their acceptance of ~~any Notes and~~ the ~~Subsidiary Guarantees thereof~~benefits hereof, ~~irrevocably consents and agrees to such appointment on its behalf~~the other Secured Parties. The Collateral Agent shall be obligated, and shall have the ~~privileges~~right hereunder, ~~powers and immunities as set forth in this Indenture and the Security Documents. Notwithstanding~~ to make demands, to give notices, to exercise or refrain from exercising any provision to the contrary contained elsewhere in this Indenture, the Security Documents or the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in naturerights, and ~~the Collateral Agent shall not have~~ to take or refrain from taking any duties or responsibilities, except those expressly set forth herein and in the Security Documents and the Intercreditor Agreements to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, the Issuer or any Subsidiary Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents or the Intercreditor Agreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. (B) The Issuer and the Subsidiary Guarantors hereby agrees that the Collateral Agent shall 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, and in accordance with, the terms of the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder. The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (C) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements action (including, without limitation, the ~~provisions providing for foreclosure, exercises of remedies and~~ release or substitution of Collateral~~) as the same may be in effect or may be amended from time to time~~ ), solely in accordance with ~~their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents~~ this Agreement and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements. (D) The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder or under any Security Documents or Intercreditor Agreements to which it is a party, except for its own gross negligence or willful misconduct. 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 been grossly negligent in ascertaining the pertinent facts. (E) The Collateral Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Majority Holders 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. Except as otherwise provided in the Security DocumentsCredit Agreement; provided, the Collateral Agent ~~shall~~ shall, after (x) payment in full of all ~~cases be fully protected in acting~~Obligations under the Credit Agreement and the other Credit Documents (other than contingent indemnification and reimbursement obligations for which no claim has been made) and (y) all Letters of Credit have been cancelled or have expired or have been Cash Collateralized or otherwise secured to the satisfaction of the Issuing Bank thereof, exercise, or ~~in refraining~~ refrain from ~~acting~~exercising, ~~under this Indenture, the Security Documents or the Intercreditor Agreements~~ any remedies provided for herein in accordance with ~~a request, direction, instruction or consent~~ the instructions of the ~~Trustee or the Majority Holders and such request and any action taken or failure to act pursuant thereto shall be binding upon all~~ holders of a majority of the ~~Holders. If the Collateral Agent shall request direction from the Majority Holders~~ aggregate notional amount (or, with respect to any ~~action~~Permitted Hedge Agreement that has been terminated in accordance with its terms, the ~~Collateral Agent shall be entitled to refrain from taking~~ amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such ~~action unless~~ Permitted Hedge Agreement) under all Permitted Hedge Agreements and ~~until~~ all Permitted Cash Management Agreements. In furtherance of the ~~Collateral Agent~~ foregoing provisions of this Section, each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have ~~received direction from the Majority Holders, and the Collateral Agent shall not incur liability~~ no right individually to any Person by reason of so refraining. (F) 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 Majority Holders (subject to this Section 11.01(F)), subject to the terms of the Security Documents. (G) Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements, neither the Collateral Agent nor any of its respective officers, directors, employees or agents or other Affiliates 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. (H) If at any time or times the Trustee shall receive (i) hereunder, it being understood and agreed 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~~ Secured Party that all rights and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements, 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 remedies hereunder may be ~~required to negotiate the same to the Collateral Agent such proceeds to be applied~~ exercised solely by the Collateral Agent ~~pursuant to~~ for the ~~terms~~ benefit of ~~this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders or to the Trustee,~~ Secured Parties in the case of the Collateral Agent, to assure that the Collateral exists or is owned by the Issuer or any Subsidiary 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 of the Issuer’s or any Subsidiary Guarantor’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 value, genuineness, validity, ownership, 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 or the Intercreditor Agreements other than to exercise such rights, authorities and powers pursuant to the instructions of the Trustee or the Majority Holders or as otherwise provided in the Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall the Collateral Agent or the Trustee 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 Agreements (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. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income thereon. 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, including, without limitation, 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 be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. The Holders, through their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies accordance with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Section. Collateral Agent ~~to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into~~ may at any ~~intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance~~ time give notice of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and its resignation to the ~~extent not prohibited under the Intercreditor Agreements, for turnover to the Trustee to make further distributions of such funds to itself, the Trustee~~ Secured Parties and ~~the Holders~~ Company in accordance with ~~the provisions of~~ Section 7.15 and the other provisions of this Indenture. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal 9.6 of the ~~Collateral Agent, in such capacity~~Credit Agreement. (O) 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 Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (P) 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 Agreements, 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 or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Age

Appears in 1 contract

Sources: Pledge and Security Agreement (Covanta Holding Corp)

Collateral Agent. (Aa) The ~~Issuer~~ Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent (or, if applicable, as security trustee in accordance with the terms of any security trustee deed to be entered into in connection with the Security Documents) under this Indenture and the ~~Subsidiary Guarantors hereby appoint U.S. Bank Trust Company, National Association to act as Collateral Agent,~~ Security Documents and the Trustee and each ~~Holder,~~ of the Holders by ~~its~~ acceptance of ~~any~~ the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture and the ~~Subsidiary Guarantees thereof, irrevocably consents~~ Security Documents and ~~agrees~~ to exercise such ~~appointment on its behalf. The~~ powers and perform such duties as are expressly delegated to the Collateral Agent ~~shall have~~ by the ~~privileges, powers and immunities as set forth in~~ terms of this Indenture and the Security Documents, together with such powers as are reasonably incidental thereto. The provisions of this Section 12.2 are solely for the benefit of the Collateral Agent and none of the Trustee, any of the Holders nor any of the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.5. Notwithstanding any provision to the contrary contained elsewhere in this ~~Indenture,~~ Indenture and the Security ~~Documents or the Intercreditor Agreements~~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 Security Documents and the Intercreditor Agreements to which the Collateral Agent is a party,~~ responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any ~~trust or other~~ fiduciary relationship with the Trustee, any ~~Holder, the Issuer~~ Holder or any ~~Subsidiary~~ Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this ~~Indenture,~~ Indenture and the Security Documents ~~or the Intercreditor Agreements~~ or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this 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. The Collateral Agent shall act pursuant to the instructions of the 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, the Intercreditor Agreement 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 Holders of a majority in aggregate principal amount of the then outstanding Notes or the Trustee, as applicable. After the occurrence of an Event of Default, the Trustee may direct the Collateral Agent in connection with any action required or permitted by this Indenture, the Security Documents or the Intercreditor Agreement. (Bb) None of the Collateral Agent or any of its respective Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuers or any Guarantor or Affiliate of any Issuer, any Guarantor, or any officer or Affiliate thereof, contained in this or any Indenture, any Security Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this or any other Indenture or the Security Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this or any other Indenture or the Security Documents, or for any failure of 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 respective Affiliates shall 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 or any other Indenture or the Security Documents or to inspect the properties, books, or records of any Issuer, any Guarantor or any of their Affiliates. (c) The ~~Issuer~~ Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Issuers, any Guarantor and their Affiliates as though it was not the Collateral Agent hereunder and without notice to or consent of the Trustee. The Trustee and the ~~Subsidiary Guarantors hereby agrees~~ Holders acknowledge that, pursuant to such activities, the Collateral Agent or its Affiliates may receive information regarding any Issuer, Guarantor or their respective Affiliates (including information that may be subject to confidentiality obligations in favor of, any such Issuer, any such Guarantor or such Affiliate) and acknowledge that the Collateral Agent shall ~~hold~~ not be under any obligation to provide such information to the ~~Collateral on behalf of and for the benefit of all of~~ Trustee or the Holders, . Nothing herein shall impose or imply any obligation on the ~~Trustee and the Collateral Agent, in each case pursuant to, and in accordance with, the terms~~ part of ~~the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders,~~ the Collateral Agent ~~and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject~~ to ~~and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder.~~ advance funds. (d) The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof authorized and ~~promptly shall deliver such Collateral~~ directed to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (C) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewithDocuments, (ii~~) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii~~) bind the Holders on the terms as set forth in the Security Documents and ~~the Intercreditor Agreements.~~ (Diii) ~~The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers,~~ perform and ~~neither the Collateral Agent nor any of~~ observe its ~~officers, directors, employees or agents shall be responsible for any act or failure to act hereunder or~~ obligations under any Security Documents or Intercreditor Agreements to which it is a party, except for its own gross negligence or willful misconduct. 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 been grossly negligent in ascertaining the pertinent facts. (E) The Collateral Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Majority Holders 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. Except as otherwise provided in the Security Documents, the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent of the Trustee or the Majority Holders and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders. If the Collateral Agent shall request direction from the Majority Holders with respect to any action, the Collateral Agent shall be entitled to refrain from taking such action unless and until the Collateral Agent shall have received direction from the Majority Holders, and the Collateral Agent shall not incur liability to any Person by reason of so refraining. (F) 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 Majority Holders (subject to this Section 11.01(F)), subject to the terms of the Security Documents. (Ge) ~~Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements~~The Trustee agrees that it shall not (and shall not be obligated to), ~~neither~~ and shall not instruct the Collateral Agent ~~nor~~ to, unless specifically requested to do so by a majority of the Holders, take or cause to be taken any action to enforce its rights under this Indenture or against any Guarantor, including the commencement of ~~its respective officers~~any legal or equitable proceedings, ~~directors~~to foreclose any Lien on, ~~employees~~ or ~~agents or other Affiliates shall be liable for failure to demand~~otherwise enforce any security interest in, ~~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. (H) Collateral. 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 ~~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 and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements~~Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 7VI, 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. (f) The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code (or other personal property security legislation) can be perfected only by possession. Should the Trustee obtain possession of any such ~~proceeds to be applied by~~ Collateral, upon request from the Issuers, the Trustee shall notify the Collateral Agent ~~pursuant~~ thereof, and, promptly upon the Collateral Agent’s request therefor shall deliver such Collateral to the ~~terms of this Indenture,~~ Collateral Agent or otherwise deal with such Collateral in accordance with the ~~Security Documents and the Intercreditor Agreements~~Collateral Agent’s instructions. (Ig) ~~Neither the Trustee nor the~~ The Collateral Agent shall have ~~any~~ no obligation whatsoever to the Trustee or any of the Holders ~~or to the Trustee, in the case of the Collateral Agent,~~ to assure that the Collateral exists or is owned by ~~the Issuer or~~ any ~~Subsidiary~~ Issuer, any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of or the ~~Issuer’s~~ Issuer or any ~~Subsidiary~~ Guarantor’s property constituting ~~Collateral~~ 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 ~~value,~~ genuineness, validity~~, ownership~~, 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,~~ Indenture or any Security ~~Document or the Intercreditor Agreements other than to exercise such rights~~Document, ~~authorities~~ it being understood and ~~powers pursuant to the instructions of the Trustee or the Majority Holders or as otherwise provided~~ agreed that in the Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall the Collateral Agent or the Trustee 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 Agreements (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. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income thereon. 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, ~~including~~or any act, ~~without limitation~~omission, ~~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 be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (a “Security Document Order”)event related thereto, the Collateral Agent ~~is hereby authorized to execute and enter into~~may act in any manner it may deem appropriate, 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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in ~~no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects~~ its sole discretion given the Collateral Agent~~. The Holders, through their acceptance of the Notes, hereby authorize and direct~~ ’s own interest in the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, 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 7.15 and the other provisions of this Indenture. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have ~~all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded~~ no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing. (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination h) No provision of this Indenture or any Security Document shall require the Collateral Agent (or the Trustee) to expend or risk its ~~earlier termination, resignation~~ own funds or ~~removal~~ 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~~, in~~ ) if it shall have reasonable grounds for believing that repayment of such ~~capacity. (O)~~ funds is not assured to it. Notwithstanding anything to the contrary contained in this Indenture, the Intercreditor ~~Agreements~~ 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 the ~~Mortgages~~ mortgages or take any such other action if the Collateral Agent has ~~reasonably~~ 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~~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 clause if it no longer reasonably deems any indemnity, security or undertaking from the ~~Issuer~~ Issuers or the Holders to be sufficient. (Pi) The ~~parties hereto~~ Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Issuers (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the ~~Holders hereby agree~~ advice or opinion of such counsel as to matters of law shall be full and ~~acknowledge that neither~~ complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act. (j) Neither the Collateral Agent nor the Trustee shall ~~assume~~be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Trustee shall be ~~responsible for or otherwise be obligated~~ liable for any ~~liabilities~~indirect, ~~claims~~special or consequential damages (included but not limited to lost profits) whatsoever, ~~causes~~ even if it has been informed of the likelihood thereof and regardless of the form of action. (k) The Collateral Agent may execute any of its duties under this Indenture and the Security Documents by or through agents, ~~suits~~in particular, ~~losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs (including~~ but not limited to, the Credit Agreement Collateral Agent (as defined in the Intercreditor Agreement) subject to the terms of the Intercreditor Agreement, 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. (l) In each case that the Collateral Agent may or is required hereunder or under any ~~remediation~~other Notes Document to take any action (an “Action”), ~~corrective action~~including without limitation to make any determination, ~~response~~to give consents, ~~removal~~ to exercise rights, powers or ~~remedial action~~remedies, to release or ~~investigation~~sell Collateral or otherwise to act hereunder or under any other Notes Document, ~~operations~~ the Collateral Agent may seek direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes. The Collateral Agent shall not be liable with respect to any Action taken or omitted to be taken by it in accordance with the direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes. If the Collateral Agent shall request direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes with respect to any Action, the Collateral Agent shall be entitled to refrain from such Action unless and ~~maintenance~~ until the Collateral Agent shall have received direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes, and the Collateral Agent shall not incur liability to any Person by reason of so refraining. (m) The Collateral Agent shall not be deemed to have knowledge or ~~monitoring costs, for personal injury or property damages, real or personal)~~ notice of the occurrence of any ~~kind whatsoever~~Default or Event of Default, ~~pursuant~~ unless a Trust Officer of the Collateral Agent shall have received written notice from the Trustee or the Issuers referring to ~~any environmental law as a result of~~ this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article VI or the Holders of a majority in aggregate principal amount of the Notes subject to this Section 12.3. (n) To the extent not inconsistent, the Collateral Agent shall be entitled to all of the protections, immunities, indemnities, rights and privileges of the Trustee set forth in this Indenture. (o) With respect to any Lien, including any Lien on Shared Collateral (as defined in the Intercreditor ~~Agreements, the~~ Agreement) created under a 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, Document which is governed by Swiss law (“Swiss Liens”): (i) the Collateral Agent or the ~~Trustee may hold~~ Bailee Collateral Agent (as defined in the Intercreditor Agreement) (and each agent or ~~obtain indicia of ownership primarily~~ sub-agent or attorney-in-fact appointed by the Collateral Agent or the Bailee Collateral Agent from time to ~~protect~~ time pursuant to the ~~security interest~~ terms of the Intercreditor Agreement) shall accept, hold, administer and, as the case may be, enforce or release: (A) any Swiss Liens of accessory (akzessorische) nature; (B) the benefit of this paragraph; and (C) any proceeds of such Swiss Liens, acting in its own name and as representative (direkter Stellvertreter) in the name and for account of each Holder and the Trustee; (ii) the Collateral ~~Age~~Agent or the Bailee Collateral Agent (and each agent or sub-agent or attorney-in-fact appointed by the Collateral Agent or the Bailee Collateral Agent from time to time pursuant to the terms of the Intercreditor Agreement) shall accept, hold, administer and, as the case may be, enforce or release: (A) any Swiss Liens of non-accessory (nicht akzessorische) nature; (B) the benefit of this paragraph; and (C) any proceeds of such Swiss Liens, as fiduciary (treuhänderisch) in its own name but for the benefit of itself, each Holder and the Trustee; (iii) each present and future Holder and the Trustee hereby appoints, instructs and authorizes the Collateral Agent or the Bailee Collateral Agent (and each agent or sub-agent or a

Appears in 1 contract

Sources: Indenture (Styron Canada ULC)

Collateral Agent. (Aa) ~~The Issuer~~ Each Holder hereby irrevocably designates and appoints the Collateral Agent as the collateral agent under this Agreement and the ~~Subsidiary Guarantors hereby appoint U.S. Bank Trust Company~~other Note Documents, ~~National Association to act as~~ and each such Holder irrevocably authorizes the Collateral Agent, ~~and each Holder~~in such capacity, by to take such action on its ~~acceptance~~ behalf under the provisions of ~~any Notes~~ this Agreement and the ~~Subsidiary Guarantees thereof, irrevocably consents~~ other Note Documents and ~~agrees~~ to exercise such ~~appointment on its behalf. The~~ powers and perform such duties as are expressly delegated to the Collateral Agent ~~shall have~~ by the ~~privileges, powers and immunities as set forth in~~ terms of this ~~Indenture~~ Agreement and the ~~Security~~ other Note Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary ~~contained~~ elsewhere in this ~~Indenture~~Agreement, ~~the Security Documents or the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in nature, and~~ the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein ~~and~~ or in the ~~Security Documents and the Intercreditor Agreements to which the Collateral Agent is a party~~other Note Documents, ~~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 Subsidiary Guarantor~~, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this ~~Indenture, the Security Documents~~ Agreement or the ~~Intercreditor Agreements~~ other Note Documents or otherwise exist against the Collateral Agent. (b) In furtherance of the foregoing, each Holder hereby appoints and authorizes the Collateral Agent to act as the agent of such Holder for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by the Grantors to secure any of the obligations owing under this Agreement or the other Note Documents, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Collateral Agent shall be entitled to the benefits of this Section 10.3. (c) The Collateral Agent may execute any of its duties under this Agreement and the other Note 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 co-agents, collateral subagents or attorneys-in-fact (each, a "Subagent") with respect to all or any part of the Collateral and each Subagent shall be entitled to the benefits of all provisions of this Section 10.3 as though such Subagent was the Collateral Agent; provided, that no such Subagent shall be authorized to take any action with respect to any Collateral unless and except to the extent expressly authorized in writing by the Collateral Agent. Should any instrument in writing from the Issuer or any Subsidiary be required by any Subagent so appointed by the Collateral Agent to more fully or certainly vest in and confirm to such Subagent such rights, powers, privileges and duties, the Issuer 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. (d) 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, agents, attorneys-in-fact or affiliates be (i) 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 extent 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 (ii) responsible in any manner to any holder of the Notes for any recitals, statements, representations or warranties made by the Issuer or any Subsidiary or any officer thereof contained in this Agreement or any other Note 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 Note Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Note Document or for any failure of the Issuer or any Subsidiary a party thereto to perform its obligations hereunder or thereunder. The Collateral Agent shall not be under any obligation to any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Note Document, or to inspect the properties, books or records of the Issuer or any Subsidiary. The Collateral Agent shall not have any duties or obligations except those expressly set forth herein and in the other Note Documents. Without limiting the generality of the ~~foregoing~~ foregoing, (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 (ii) the Collateral Agent shall not, except as expressly set forth herein and in the other Note 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 Collateral Agent or any of its Affiliates in any capacity. Without limiting the generality of clause (i) of the previous sentence, the use of the term “"agent” " herein and in ~~this Indenture~~ the other Note Documents with reference to ~~the~~ Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any ~~applicable law. Instead~~Applicable Law and 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~~. (B)~~ . The ~~Issuer~~ Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the ~~Subsidiary Guarantors hereby agrees~~ other Note Documents that the Collateral Agent is required to exercise as directed in writing by the Majority Holders; provided that the Collateral Agent shall ~~hold the Collateral on behalf of and for the benefit of all of the Holders, the Trustee and the Collateral Agent~~not be required to take any action that, in ~~each case pursuant to~~its opinion or the opinion of its counsel, ~~and in accordance with, the terms of the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders,~~ may expose the Collateral Agent ~~and the Trustee, and~~ to liability or that ~~the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders~~ is ~~subject~~ contrary to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder. The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any ~~such Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent~~ Note Document or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (C) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements. (D) The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder or under any Security Documents or Intercreditor Agreements to which it is a party, except for its own gross negligence or willful misconductApplicable Law. The Collateral Agent shall not be responsible for or have ~~no liability for~~ any ~~action taken~~duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Note 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 or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Note Document or any other agreement, instrument or document, or ~~errors~~ the creation, perfection or priority of any Lien purported to be created by the Note Documents, (v) the value or the sufficiency of any Collateral, (vi) the satisfaction of any condition set forth in ~~judgment made~~Article 5 or elsewhere herein, ~~in good faith by it~~ other than to confirm receipt of items expressly required to be delivered to the Collateral Agent, (vii) the financial condition or business affairs of the Issuer, any Guarantor or any other Person liable for the payment of any Obligations, or (viii) the use of the proceeds of the Notes. The Collateral Agent shall not be responsible for or have any duty to (i) inspect the properties, books or records of the Issuer or any Guarantor or any of ~~its officers~~their respective Affiliates, ~~employees~~ (ii) file any financing statements or ~~agents~~any continuation and/or amendment of any financing statements, in each case to perfect or continue the perfection of the Liens in the Collateral; or (iii) make any disclosures with respect to the foregoing or otherwise relating to the Issuer or any Guarantor unless ~~it shall have been grossly negligent in ascertaining the pertinent facts~~expressly required herein. (Ee) The Collateral Agent shall be entitled to ~~seek~~ 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. 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, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (including counsel to the Issuer), 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 request (i) instructions from the Majority Holders prior to taking any action or entering into any amendment, modification or supplement, making any determination, making any calculation, sending any notice, revoking any notice, making a selection, request, election or appointment (including failing to make a selection, request, election or appointment), exercising any voting rights or powers (including failing to exercise any voting rights or powers), exercising any rights or remedies (and all actions incidental or related thereto), releasing, subordinating and/or terminating any Lien, exercising any powers as the attorney-in-fact for the Issuer or any Guarantor, providing any consent, approval, instruction or direction (including failing to provide any consent, approval, instruction or direction) or making (or failing to make) any filing or recording in connection with this Agreement or any of the other Note Documents, and may refrain (and shall incur no liability from so refraining) from taking or omitting to take any act or making any such determination, calculation, selection request, exercising such voting rights or powers or providing such notice, approval or consent or entering into any amendments, modification or supplements until it receives such instruction (or calculation, as applicable) from the Majority Holders and (ii) such indemnity from the Holders, in each case, as it deems appropriate (and until such instructions and indemnity, as applicable, are received, the Collateral Agent shall act, or refrain from acting, as it deems advisable in its sole discretion) and the Collateral Agent shall not incur liability to any Holders, the Issuer or any Guarantor by reason of so refraining. The Collateral Agent shall be fully justified in acting or in failing or refusing to take any action under this ~~Indenture, the Security Documents~~ Agreement or ~~the Intercreditor Agreements~~ any other Note Document unless it shall first (a) receive such ~~advice or concurrence~~ written instruction of ~~the Trustee or~~ the Majority Holders as it ~~determines and~~deems appropriate and (b) if so determined by the Collateral Agent in its sole discretion, ~~if it so requests, it shall first~~ be indemnified to its satisfaction by the Holders against any and all liability and expense ~~which~~ that may be incurred by it by reason of taking or continuing to take any such action. ~~Except as otherwise provided in the Security Documents, the~~ The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this ~~Indenture,~~ Agreement and the ~~Security~~ other Note Documents ~~or the Intercreditor Agreements~~ in accordance with a ~~request, direction,~~ written instruction ~~or consent~~ of ~~the Trustee or~~ the Majority Holders (or, if so specified by this Agreement, all affected Holders), and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders~~. If~~ . (f) 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 request direction~~ has received written notice from a Holder or the ~~Majority Holders with respect~~ Issuer referring to ~~any action~~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 ~~be entitled~~ give notice thereof to ~~refrain from taking such action unless and until~~ the ~~Collateral Agent shall have received direction from the Majority~~ Holders~~, and the Collateral Agent shall not incur liability to any Person by reason of so refraining. (F)~~ . The Collateral Agent shall take such action with respect to such Default or Event of Default as ~~may~~ shall be ~~requested~~ reasonably directed by ~~the Trustee or~~ the Majority Holders in writing; provided, that unless and until the Collateral Agent shall have received such directions, the Collateral Agent may (~~subject~~ but shall not be obligated to) take such action, or refrain from taking such action, with respect to ~~this Section 11.01(F)), subject to~~ such Default or Event of Default as it shall deem advisable in the ~~terms~~ best interests of the ~~Security Documents~~Holders. (Gg) ~~Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements,~~ Each Holder expressly acknowledges that neither the Collateral Agent nor any of its ~~respective~~ officers, directors, ~~employees~~ employees, agents, attorneys-in-fact or ~~agents~~ affiliates have made any representations or ~~other Affiliates shall be liable for failure~~ warranties 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. (H) If at any time or times the Trustee shall receive (i) it and that no act 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 and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms~~ hereafter taken, including any review of the ~~Intercreditor Agreements~~affairs of the Issuer or any Affiliate of the Issuer, shall be deemed to constitute any representation or ~~(ii) payments from~~ warranty by the Collateral Agent ~~in excess~~ to any Holder. Each Holder 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 a Note represents to the Collateral Agent that it has, independently and without reliance upon the Collateral Agent or any other Holder, and based on such ~~proceeds~~ 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 Issuer and its affiliates and made its own decision to purchase the Notes hereunder and enter into this Agreement. Each holder of a Note also represents that it will, independently and without reliance upon the Collateral Agent or any 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 Note 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 Issuer and its Affiliates. Except for notices, reports and other documents expressly required to be ~~applied~~ furnished to the Holders by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders or to the Trustee, in the case of the Collateral Agent, to assure that the Collateral exists or is owned by the Issuer or any Subsidiary 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 of the Issuer’s or any Subsidiary Guarantor’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 value, genuineness, validity, ownership, 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 or the Intercreditor Agreements other than to exercise such rights, authorities and powers pursuant to the instructions of the Trustee or the Majority Holders or as otherwise provided in the Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall the Collateral Agent or the Trustee 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 Agreements (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. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income thereon. 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, including, without limitation, 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 be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. The Holders, through their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, 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 7.15 and the other provisions of this Indenture. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Collateral Agent, in such capacity. (O) 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 Collateral, the Collateral Agent shall not ~~be required~~ have any duty or responsibility to ~~commence~~ provide any ~~such action~~ Holder with any credit or ~~exercise any remedy or to inspect or conduct any studies of any property under~~ other information concerning the ~~Mortgages or take any such other action if the Collateral Agent has reasonably determined that the Collateral Agent may incur personal liability as a result of the presence at~~business, ~~or release on or from~~operations, ~~the Collateral or such~~ property, condition (financial or otherwise), prospects or creditworthiness of any hazardous substances. The Collateral Agent shall at any time be entitled to cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or any Affiliate thereof that may come into the Holders to be sufficient. (P) 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 possession 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 Agreements, 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 or any of its officers, directors, employees, agents, attorneys-in-fact or affiliates. (h) The Issuer agrees to pay or reimburse the ~~Trustee may hold or obtain indicia of ownership primarily to protect the security interest~~ Collateral Agent for all reasonable and documented out-of-pocket costs and expenses of the Collateral ~~Age~~Agent (promptly following a written demand therefor, together with backup documentation supporting such reimbursement request) incurred in connection with the preparation, negotiation, execution, delivery and administration of this Agreement and the other Note Documents and any amendment, waiver, consent, forbearance, modification or enforcement (whether through negotiations, legal proceedings or otherwise) of the provisions hereof and thereof (whether or not the transactions contemplated thereby are consummated), and the consummation and administration of the transactions contemplated hereby and thereby, including all reasonable and documented attorneys' fees, costs and expenses and, if necessary, a single local counsel in each relevant jurisdiction, and upon presentation of a summary statement, together with any supporting documentation reasonably requested by the Issuer, to pay or reimburse the Collateral Agent, promptly following a written demand therefor for all reasonable and documented out-of-pocket costs and expenses incurred in connection with the enforcement of any rights or remed

Appears in 1 contract

Sources: Note Purchase Agreement (Bioceres Crop Solutions Corp.)

Collateral Agent. (Aa) ~~The Issuer and the Subsidiary Guarantors hereby appoint~~ U.S. Bank ~~Trust Company,~~ National Association to shall initially act as Collateral ~~Agent~~Agent and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements, ~~and each Holder~~neither the Collateral Agent nor any of its officers, ~~by its acceptance~~ directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Notes Collateral or for any delay in doing so or shall be under any obligation to Dispose of any Notes ~~and~~ Collateral upon the ~~Subsidiary Guarantees~~ request of any other Person or to take any other action whatsoever with regard to the Notes Collateral or any part thereof~~, irrevocably consents and agrees to such appointment on its behalf. The Collateral Agent shall have the privileges, powers and immunities as set forth in this Indenture and the Security Documents~~. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the ~~Security Documents~~ Intercreditor Agreements or the ~~Intercreditor Agreements~~Security 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~~ in this Indenture, in the Intercreditor Agreements and in the Security Documents ~~and the Intercreditor Agreements~~ to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, the Issuer or any ~~Subsidiary~~ Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Intercreditor Agreements or the Security Documents or ~~the Intercreditor Agreements or~~ shall otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” or “Agent” in this ~~Indenture~~ Indenture, the Intercreditor Agreements and the Security Documents with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market ~~custom,~~ custom and is intended to create or reflect only an administrative relationship between independent contracting parties. (B) The Issuer and the Subsidiary Guarantors hereby agrees that the Collateral Agent shall 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, and in accordance with, the terms of the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder. The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (C) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements. (D) The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act ~~hereunder or under any Security Documents or Intercreditor Agreements to which it is a party~~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 ~~willful misconduct~~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 Officer’s Certificate so stating and requesting the Collateral Agent to enter into an Intercreditor Agreement in favor of a designated agent or representative for the holders of the First Priority Lien Obligations so Incurred, and the Trustee and the Collateral Agent shall (and are hereby authorized and directed to) enter into such Intercreditor Agreement, bind the Holders on the terms set forth therein and perform and observe their obligations thereunder. (d) The Collateral Agent shall act pursuant to the instructions of the Holders and the Trustee with respect to the Security Documents and the Notes Collateral. ~~The~~ For the avoidance of doubt, the Collateral Agent shall have no ~~liability for~~ discretion under this Indenture, the Intercreditor Agreements or the Security Documents and shall not be required to make or give any determination, consent, approval, request or direction without the written direction of the requisite Holders or the Trustee, as applicable. After the occurrence of an Event of Default, the Trustee may direct the Collateral Agent in connection with any action ~~taken,~~ required or ~~errors in judgment made, in good faith~~ permitted by it or any of its officers, employees or agents, unless it shall have been grossly negligent in ascertaining the pertinent facts. (E) The Collateral Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Majority Holders 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. Except as otherwise provided in the Security Documents, the Agreements. (e) The Collateral Agent shall ~~in all cases~~ not be ~~fully protected in acting,~~ deemed to have knowledge or ~~in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent~~ notice of the ~~Trustee~~ occurrence of any Default or ~~the Majority Holders and such request and any action taken or failure to act pursuant thereto shall be binding upon all~~ Event of ~~the Holders. If the Collateral Agent shall request direction from the Majority Holders with respect to any action~~Default, ~~the Collateral Agent shall be entitled to refrain from taking such action~~ unless ~~and until~~ the Collateral Agent shall have received ~~direction~~ written notice from the ~~Majority Holders~~Trustee, a Holder or the Issuer referring to this Indenture, describing such Default or Event of Default and ~~the Collateral Agent shall not incur liability to any Person by reason~~ stating that such notice is a “notice of ~~so refraining. (F)~~ 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 ~~Majority~~ Holders (of a majority in aggregate principal amount of the Securities subject to this ~~Section 11.01(F)), subject to the terms of the Security Documents~~Article 11. (Gf) ~~Except as otherwise explicitly provided herein~~ No provision of this Indenture or ~~in the~~ any Security ~~Documents or the Intercreditor Agreements, neither~~ Document shall require the Collateral Agent ~~nor~~ (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its ~~respective officers, directors, employees~~ duties hereunder or agents or other Affiliates 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 thereunder or to take or omit to take any ~~other~~ action ~~whatsoever with regard to~~ hereunder or thereunder or take any action at the ~~Collateral~~ request or ~~any part thereof.~~ direction of Holders (~~H) 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 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 and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements, 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 such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders or to 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 ~~assure~~ 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 ~~exists or is owned by~~ Agent may incur personal liability as a result of the ~~Issuer or any Subsidiary Guarantor or is cared for, protected~~presence at, or ~~insured~~ release on or ~~has been encumbered~~from, the Notes Collateral or ~~that~~ such property of any hazardous substances unless the Collateral ~~Agent’s Liens have been properly~~ Agent has received security or ~~sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether~~ indemnity from the Holders in an amount and in a form all of the Issuer’s or any Subsidiary Guarantor’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 value, genuineness, validity, ownership, 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 satisfactory to the Collateral Agent ~~pursuant~~ 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 ~~Indenture~~Section 11.09(f) if it no longer reasonably deems any indemnity, ~~any Security Document~~ security or undertaking from the Issuer or the ~~Intercreditor Agreements other than~~ Holders to ~~exercise such rights, authorities and powers pursuant~~ be sufficient. (g) The Collateral Agent shall not be responsible in any manner to ~~the instructions~~ any of the Trustee or any Holder for the ~~Majority Holders~~ validity, effectiveness, genuineness, enforceability or as otherwise provided in the Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall the Collateral Agent or the Trustee be responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance sufficiency of ~~the security interests or Liens intended to be created by~~ this Indenture, the Security Documents or the Intercreditor Agreements ~~(including without limitation~~ or for any failure of the ~~filing~~ Issuer, any Guarantor or ~~continuation of~~ any ~~Uniform Commercial Code financing or continuation statements or similar documents or instruments)~~other party to this Indenture, ~~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~~ Intercreditor Agreements to perform its obligations hereunder or ~~Liens intended to be created thereby. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income thereon~~thereunder. 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~~ under any obligation to the Trustee or ~~responsible for~~ any ~~loss~~ Holder to ascertain or ~~diminution in value~~ to inquire as to the observance or performance of any of the ~~Collateral~~agreements contained in, ~~including~~or conditions of, ~~without limitation~~this Indenture, ~~by reason~~ the Security Documents or the Intercreditor Agreements or to inspect the properties, books or records of the ~~act~~ Issuer or ~~omission~~ 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 ~~carrier~~kind whatsoever, ~~forwarding agency~~ pursuant to any environmental law as a result of this Indenture, the Intercreditor Agreements or ~~other agent~~ the Security Documents or ~~bailee selected~~ any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that, in the exercise of its rights under this Indenture, the Intercreditor Agreements and the Security Documents, the Collateral Agent may 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 ~~good faith. The Collateral Agent shall be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit~~the management of such Notes Collateral. (Ki) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by ~~an Officer~~ 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 ~~11.01(K),~~ 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 ~~(iii) certify~~ expense of the Issuer, upon delivery to the Collateral Agent of an Officer’s Certificate and an Opinion of Counsel stating that all ~~covenants and~~ conditions ~~precedent, if any~~ precedent to the execution and delivery of ~~the~~ such Security Document have been ~~compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent~~satisfied. The Holders, ~~through~~ by their acceptance of the ~~Notes~~Securities, hereby authorize and direct the Collateral Agent to execute such Security Documents. (Lj) ~~Upon receipt~~ The Collateral Agent’s resignation or removal shall be governed by ~~the Collateral Agent of a Security Document Order, the Collateral Agent is hereby authorized~~ provisions equivalent to execute and enter into, and shall execute and enter into, without the further consent of any Holder or the Trustee, any Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section ~~11.01(L~~7.07(a), Section 7.07(b), Section 7.07(c), Section 7.07(d) and Section 7.07(f). (iik) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The ~~Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the~~ Collateral Agent shall be entitled to ~~conclusively rely on~~ 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 ~~Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents~~ or ~~the Intercreditor Agreements and to the extent not prohibited under~~ the Intercreditor Agreements, 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 7.15 and the other provisions of this Indenturewhether or not expressly stated therein. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Collateral Agent, in such capacity. (O) 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 Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (P) 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 Agreements, 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 or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Age

Appears in 1 contract

Sources: Indenture (Blue Water Acquisition Corp.)

Collateral Agent. (Aa) ~~The Issuer and~~ Each Holder agrees that any action taken by the Subsidiary Guarantors hereby appoint U.S. Bank Trust Company, National Association to act as Collateral Agent, and each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to such appointment on its behalf. The Collateral Agent ~~shall have~~ in accordance with the ~~privileges, powers and immunities as set forth in~~ provisions of this Indenture and the Security Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this ~~Indenture,~~ Indenture and the Security ~~Documents or the Intercreditor Agreements~~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 Security Documents ~~and the Intercreditor Agreements~~ to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any ~~Holder, the Issuer~~ Holder or any ~~Subsidiary Guarantor~~grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this ~~Indenture,~~ Indenture and the Security ~~Documents or the Intercreditor Agreements~~ Documents, or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. (B) The Issuer and the Subsidiary Guarantors hereby agrees that the Collateral Agent shall 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, and in accordance with, the terms of the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder. The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (C) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements. (Db) The Collateral Agent ~~shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor~~ may perform any of its duties under this Indenture or the Security Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, ~~employees or agents~~ employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be ~~responsible for any act or failure~~ entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act ~~hereunder~~ upon, and shall be fully protected in taking action in reliance upon any advice or ~~under any Security Documents or Intercreditor Agreements to which it is a party, except for its own~~ opinion given by legal counsel (absent gross negligence or willful ~~misconduct~~misconduct as determined in an non-appealable judgment by a court of competent jurisdiction). The Collateral Agent shall ~~have no liability~~ not be responsible for the negligence or misconduct of any ~~action taken~~receiver, agent, employee, attorney-in-fact or ~~errors in judgment made,~~ Related Person that it selects as long as such selection was made in good faith ~~by it or any of its officers, employees or agents, unless it shall have been grossly negligent in ascertaining the pertinent facts~~and with due care. (Ec) The Collateral Agent shall be entitled to ~~seek~~ 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 in good faith to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Company or any other grantor), independent accountants and other experts and advisors selected by the Collateral Agent (absent gross negligence or willful misconduct as determined in an non-appealable judgment by a court of competent jurisdiction). The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. Except as otherwise expressly provided herein, the Collateral Agent shall be fully justified in failing or refusing to take any action under this ~~Indenture,~~ Indenture or the Security Documents ~~or the Intercreditor Agreements~~ unless it shall first receive such advice or concurrence of the Trustee or Holders of a majority in aggregate principal amount of the ~~Majority Holders~~ then outstanding Notes, as ~~it determines~~ applicable, 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. ~~Except as otherwise provided in the Security Documents, the~~ The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this ~~Indenture,~~ Indenture or the Security Documents ~~or the Intercreditor Agreements~~ in accordance with a request, direction, instruction or consent of the Trustee or the ~~Majority~~ Holders of a majority in aggregate principal amount of the then outstanding Notes, as applicable, and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders~~. If the~~ . (d) The Collateral Agent shall ~~request direction from~~ not be deemed to have knowledge or notice of the ~~Majority Holders with respect to~~ occurrence of any ~~action~~Default or Event of Default, ~~the Collateral Agent shall be entitled to refrain from taking such action~~ unless ~~and until~~ a Responsible Officer of the Collateral Agent shall have received ~~direction~~ written notice from the ~~Majority Holders~~Trustee, a Holder or the Company referring to this Indenture, describing such Default or Event of Default and ~~the Collateral Agent shall not incur liability to any Person by reason~~ stating that such notice is a “notice of ~~so refraining~~default. ~~(F)~~ ” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or Holders of a majority in aggregate principal amount of the ~~Majority Holders~~ then outstanding Notes, as the case may be (subject to this Section ~~11.01(F~~13.07 and the Intercreditor Agreements)~~), subject to the terms of the Security Documents~~. (Ge) ~~Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements, neither the~~ The Collateral Agent nor any of its respective officers, directors, employees or agents or other Affiliates 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. may (Hi) If resign 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 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 and to the extent such proceeds or payments are permitted to be paid 30 days’ written notice to the Trustee or and the ~~Holders under the terms of the Intercreditor Agreements,~~ Company 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 such proceeds to be applied removed at any time by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders or 30 days’ written notice to the Trustee, the Collateral Agent and the Company from Holders of a majority in aggregate principal amount of the ~~case~~ then outstanding Notes, such resignation or removal to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral Agent resigns or is removed under this Indenture, Holders of a majority in aggregate principal amount of the then outstanding Notes, 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~~Agent (as stated in the notice of resignation or removal), the Trustee may appoint a successor collateral agent in consultation with the Company. If no successor collateral agent is appointed and consented to ~~assure that the Collateral exists or is owned~~ by the Issuer or any Subsidiary 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 of the Issuer’s or any Subsidiary Guarantor’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 value, genuineness, validity, ownership, 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 or the Intercreditor Agreements other than to exercise such rights, authorities and powers Company pursuant to the ~~instructions~~ preceding sentence within thirty (30) days after the intended effective date of ~~the Trustee or the Majority Holders or~~ resignation (as ~~otherwise provided~~ stated in the ~~Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture~~ notice of resignation or ~~in any Security Document or any Intercreditor Agreement~~removal, in no event shall the Collateral Agent or the Trustee 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 Agreements (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. (Jas applicable) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income thereon. 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, including, without limitation, 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 be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. The Holders, through their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to ~~conclusively rely on~~ petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such ~~Security Document Order. (M) The~~ successor collateral agent shall succeed to all the rights, powers and duties of the retiring Collateral ~~Agent is authorized to receive any funds for the benefit of itself~~Agent, ~~the Trustee~~ and the ~~Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements~~term “Collateral Agent” shall mean such successor collateral agent, ~~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 7.15~~ retiring Collateral Agent’s appointment, powers and ~~the other provisions of this Indenture. (N) In acting under this Indenture or any other Note Document,~~ duties as the Collateral Agent shall ~~have all~~ be terminated. After the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubtretiring Collateral Agent’s resignation hereunder, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination provisions of this ~~Indenture or~~ Section 13.07 (and Section 7.06 and 7.13 hereof) shall continue to inure to its ~~earlier termination, resignation or removal of~~ benefit and the Collateral Agent, in such capacity. (O) 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 Collateral, the retiring Collateral Agent shall not by reason of such resignation or removal be ~~required~~ deemed to ~~commence~~ be released from liability as to any ~~such action~~ actions taken or ~~exercise any remedy or~~ omitted to ~~inspect or conduct any studies of any property under the Mortgages or take any such other action if~~ be taken by it while it was the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (P) 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 Agreements, 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 or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Age~~.

Appears in 1 contract

Sources: Indenture (Liveperson Inc)

Collateral Agent. ~~(A)~~ The ~~Issuer and the Subsidiary Guarantors hereby appoint U.S. Bank Trust Company, National Association to act as Collateral Agent,~~ Trustee and each ~~Holder,~~ of the Holders by ~~its~~ acceptance of ~~any~~ the Notes hereby designates and appoints the ~~Subsidiary Guarantees thereof, irrevocably consents and agrees to such appointment on its behalf. The~~ Collateral Agent ~~shall have the privileges, powers and immunities~~ as ~~set forth in~~ its agent under this Indenture and the Notes Security Documents and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture and the Notes Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture, and the Notes Security Documents, together with such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary ~~contained~~ elsewhere in this ~~Indenture, the Security Documents~~ Indenture or the ~~Intercreditor Agreements~~Notes Security 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,~~ responsibilities except those expressly set forth herein ~~and in the Security Documents and the Intercreditor Agreements to which the Collateral Agent is a party~~or therein, ~~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 Subsidiary Guarantor~~, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this ~~Indenture, the Security Documents~~ Indenture or the ~~Intercreditor Agreements~~ Notes Security Documents, or otherwise exist against the Collateral Agent. ~~Without limiting~~ For the ~~generality~~ avoidance of ~~the foregoing sentence~~doubt, 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. (B) The Issuer and the Subsidiary Guarantors hereby agrees that the Collateral Agent shall 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, and in accordance with, the terms of the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder. The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (C) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements. (D) The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder or under any Security Documents or Intercreditor Agreements to which it is a party, except for its own gross negligence or willful misconduct. The Collateral Agent shall have no ~~liability for any action taken,~~ duty or errors in judgment made, in good faith by it or any of its officers, employees or agents, unless it shall have been grossly negligent in ascertaining the pertinent facts. (E) The Collateral Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Majority Holders 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. Except as otherwise provided in the Security Documents, the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent of the Trustee or the Majority Holders and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders. If the Collateral Agent shall request direction from the Majority Holders with respect obligation to any action, the Collateral Agent shall be entitled to refrain from taking such action unless and until the Collateral Agent shall have received direction from the Majority Holders, and the Collateral Agent shall not incur liability to any Person by reason of so refraining. (F) The Collateral Agent shall take such action with respect to such Default Holder or Event of Default as may be requested by the Trustee or the Majority Holders (subject to this Section 11.01(F)), subject to the terms of the Security Documents. (G) Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements, neither the Collateral Agent nor any of its respective officers, directors, employees or agents or other Affiliates 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. (H) 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 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 and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements, 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 such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders or to the Trustee, in the case of the Collateral Agent, to assure that the Collateral exists or is owned by the ~~Issuer~~ Company or any ~~Subsidiary~~ Guarantor or is cared for, ~~protected~~protected or insured, ~~or insured~~ or has been encumbered, or that the liens granted on the Collateral ~~Agent’s Liens~~ pursuant to the Notes Security Documents have been ~~properly or~~ properly, sufficiently or lawfully created, perfected, ~~protected~~protected or enforced, ~~maintained or enforced~~ or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Subsidiary Guarantor’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 value, genuineness, validity, ownership, 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 or the Intercreditor Agreements other than to exercise such rights, authorities and powers pursuant to the instructions of the Trustee or the Majority Holders or as otherwise provided in the Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall the Collateral Agent or the Trustee 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 Agreements (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. (J) 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 ~~exercise reasonable care~~ constitute full and complete authorization for, and protection from liability in respect of, any action taken, omitted or suffered by it hereunder or under the ~~custody~~ Notes Security Documents in good faith and in accordance with the advice or opinion of ~~any Collateral in its possession or control or any income thereon~~such counsel. 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~~ action taken or ~~diminution in value of any of the Collateral, including, without limitation,~~ not taken 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 be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. The Holders, through their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, 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 7.15 and the other provisions of this Indenture. (N) In acting under this Indenture or ~~any other Note Document,~~ the ~~Collateral Agent shall have all~~ Notes Security Documents (i) with the ~~rights and protections provided hereunder and~~ consent or at the request of the Holders of a majority of the aggregate principal amount of the outstanding Notes or (ii) in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Collateral Agent, in such capacity. (O) 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 Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (P) 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 Agreements, 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 absence of its ~~rights under this Indenture~~own gross negligence, ~~the Intercreditor Agreements and the Security Documents, the Collateral Agent~~ willful misconduct or ~~the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Age~~bad faith.

Appears in 1 contract

Sources: Indenture (Homer City Generation, L.P.)

Collateral Agent. (Aa) ~~The Issuer and the Subsidiary Guarantors hereby appoint~~ U.S. Bank ~~Trust Company,~~ National Association to shall initially act as Collateral ~~Agent~~Agent and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements, ~~and each Holder~~neither the Collateral Agent nor any of its officers, ~~by its acceptance~~ directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Notes Collateral or for any delay in doing so or shall be under any obligation to Dispose of any Notes ~~and~~ Collateral upon the ~~Subsidiary Guarantees~~ request of any other Person or to take any other action whatsoever with regard to the Notes Collateral or any part thereof~~, irrevocably consents and agrees to such appointment on its behalf. The Collateral Agent shall have the privileges, powers and immunities as set forth in this Indenture and the Security Documents~~. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the ~~Security Documents~~ Intercreditor Agreements or the ~~Intercreditor Agreements~~Security 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~~ in this Indenture, in the Intercreditor Agreements and in the Security Documents ~~and the Intercreditor Agreements~~ to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, the Issuer or any ~~Subsidiary~~ Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Intercreditor Agreements or the Security Documents or ~~the Intercreditor Agreements or~~ shall otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” or “Agent” in this ~~Indenture~~ Indenture, the Intercreditor Agreements and the Security Documents with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market ~~custom,~~ custom and is intended to create or reflect only an administrative relationship between independent contracting parties. (B) The Issuer and the Subsidiary Guarantors hereby agrees that the Collateral Agent shall 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, and in accordance with, the terms of the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder. The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (C) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements. (D) The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act ~~hereunder or under any Security Documents or Intercreditor Agreements to which it is a party~~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 ~~willful misconduct~~any Guarantors Incur any obligations in respect of any First Priority Lien Obligations at any time when no intercreditor agreement with respect thereto is in effect or at any time when Indebtedness constituting First Priority Lien Obligations entitled to the benefit of an existing intercreditor agreement is concurrently retired, the Issuer shall deliver to the Collateral Agent an Officers’ Certificate so stating and requesting the Collateral Agent to enter into an Intercreditor Agreement in favor of a designated agent or representative for the holders of the First Priority Lien Obligations so Incurred, and the Trustee and the Collateral Agent shall (and are hereby authorized and directed to) enter into such Intercreditor Agreement, bind the Holders on the terms set forth therein and perform and observe their obligations thereunder. (d) The Collateral Agent shall act pursuant to the instructions of the Holders and the Trustee with respect to the Security Documents and the Notes Collateral. ~~The~~ For the avoidance of doubt, the Collateral Agent shall have no ~~liability for~~ discretion under this Indenture, the Intercreditor Agreements or the Security Documents and shall not be required to make or give any determination, consent, approval, request or direction without the written direction of the requisite Holders or the Trustee, as applicable. After the occurrence of an Event of Default, the Trustee may direct the Collateral Agent in connection with any action ~~taken,~~ required or ~~errors in judgment made, in good faith~~ permitted by it or any of its officers, employees or agents, unless it shall have been grossly negligent in ascertaining the pertinent facts. (E) The Collateral Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Majority Holders 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. Except as otherwise provided in the Security Documents, the Agreements. (e) The Collateral Agent shall ~~in all cases~~ not be ~~fully protected in acting,~~ deemed to have knowledge or ~~in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent~~ notice of the ~~Trustee~~ occurrence of any Default or ~~the Majority Holders and such request and any action taken or failure to act pursuant thereto shall be binding upon all~~ Event of ~~the Holders. If the Collateral Agent shall request direction from the Majority Holders with respect to any action~~Default, ~~the Collateral Agent shall be entitled to refrain from taking such action~~ unless ~~and until~~ the Collateral Agent shall have received ~~direction~~ written notice from the ~~Majority Holders~~Trustee, a Holder or the Issuer referring to this Indenture, describing such Default or Event of Default and ~~the Collateral Agent shall not incur liability to any Person by reason~~ stating that such notice is a “notice of ~~so refraining. (F)~~ 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 ~~Majority~~ Holders (of a majority in aggregate principal amount of the Securities subject to this ~~Section 11.01(F)), subject to the terms of the Security Documents~~Article 11. (Gf) ~~Except as otherwise explicitly provided herein~~ No provision of this Indenture or ~~in the~~ any Security ~~Documents or the Intercreditor Agreements, neither~~ Document shall require the Collateral Agent ~~nor~~ (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its ~~respective officers, directors, employees~~ duties hereunder or agents or other Affiliates 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 thereunder or to take or omit to take any ~~other~~ action ~~whatsoever with regard to~~ hereunder or thereunder or take any action at the ~~Collateral~~ request or ~~any part thereof.~~ direction of Holders (~~H) 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 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 and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements, 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 such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders or to 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 ~~assure~~ 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 ~~exists or is owned by~~ Agent may incur personal liability as a result of the ~~Issuer or any Subsidiary Guarantor or is cared for, protected~~presence at, or ~~insured~~ release on or ~~has been encumbered~~from, the Notes Collateral or ~~that~~ such property of any hazardous substances unless the Collateral ~~Agent’s Liens have been properly~~ Agent has received security or ~~sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether~~ indemnity from the Holders in an amount and in a form all of the Issuer’s or any Subsidiary Guarantor’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 value, genuineness, validity, ownership, 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 satisfactory to the Collateral Agent ~~pursuant~~ 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 ~~Indenture~~Section 11.10(f) if it no longer reasonably deems any indemnity, ~~any Security Document~~ security or undertaking from the Issuer or the ~~Intercreditor Agreements other than~~ Holders to ~~exercise such rights, authorities and powers pursuant~~ be sufficient. (g) The Collateral Agent shall not be responsible in any manner to ~~the instructions~~ any of the Trustee or any Holder for the ~~Majority Holders~~ validity, effectiveness, genuineness, enforceability or as otherwise provided in the Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall the Collateral Agent or the Trustee be responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance sufficiency of ~~the security interests or Liens intended to be created by~~ this Indenture, the Security Documents or the Intercreditor Agreements ~~(including without limitation~~ or for any failure of the ~~filing~~ Issuer, any Guarantor or ~~continuation of~~ any ~~Uniform Commercial Code financing or continuation statements or similar documents or instruments)~~other party to this Indenture, ~~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~~ Intercreditor Agreements to perform its obligations hereunder or ~~Liens intended to be created thereby. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income thereon~~thereunder. 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~~ under any obligation to the Trustee or ~~responsible for~~ any ~~loss~~ Holder to ascertain or ~~diminution in value~~ to inquire as to the observance or performance of any of the ~~Collateral~~agreements contained in, ~~including~~or conditions of, ~~without limitation~~this Indenture, ~~by reason~~ the Security Documents or the Intercreditor Agreements or to inspect the properties, books or records of the ~~act~~ Issuer or ~~omission~~ 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 ~~carrier~~kind whatsoever, ~~forwarding agency~~ pursuant to any environmental law as a result of this Indenture, the Intercreditor Agreements or ~~other agent~~ the Security Documents or ~~bailee selected~~ any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that, in the exercise of its rights under this Indenture, the Intercreditor Agreements and the Security Documents, the Collateral Agent may 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 ~~good faith. The Collateral Agent shall be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit~~the management of such Notes Collateral. (Ki) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by ~~an Officer~~ 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 ~~11.01(K),~~ 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 ~~(iii) certify~~ expense of the Issuer, upon delivery to the Collateral Agent of an Officers’ Certificate and an Opinion of Counsel stating that all ~~covenants and~~ conditions ~~precedent, if any~~ precedent to the execution and delivery of ~~the~~ such Security Document have been ~~compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent~~satisfied. The Holders, ~~through~~ by their acceptance of the ~~Notes~~Securities, hereby authorize and direct the Collateral Agent to execute such Security Documents. (Lj) ~~Upon receipt~~ The Collateral Agent’s resignation or removal shall be governed by ~~the Collateral Agent of a Security Document Order, the Collateral Agent is hereby authorized~~ provisions equivalent to execute and enter into, and shall execute and enter into, without the further consent of any Holder or the Trustee, any Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section ~~11.01(L~~7.07(b), Section 7.07(c), Section 7.07(d), Section 7.07(e) and Section 7.07(g). (iik) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The ~~Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the~~ Collateral Agent shall be entitled to ~~conclusively rely on~~ 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 ~~Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents~~ or ~~the Intercreditor Agreements and to the extent not prohibited under~~ the Intercreditor Agreements, 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 7.15 and the other provisions of this Indenturewhether or not expressly stated therein. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Collateral Agent, in such capacity. (O) 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 Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (P) 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 Agreements, 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 or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Age

Appears in 1 contract

Sources: Indenture (Aquestive Therapeutics, Inc.)

Collateral Agent. (Aa) ~~The Issuer~~ Each Holder hereby designates and appoints SFT (the ~~Subsidiary Guarantors hereby appoint U.S. Bank Trust Company~~"Collateral Agent") as the collateral agent for such holder under the Security Agreement dated of even date herewith made by Spatialight and by Spatialight of California, ~~National Association to act as~~ Inc., and authorizes the Collateral Agent, in such capacity, to be the secured party under said Security Agreement and ~~each Holder, by its acceptance~~ to take such action on behalf of ~~any Notes~~ the Holders and to exercise such powers and perform such duties as are expressly given to the ~~Subsidiary Guarantees thereof, irrevocably consents and agrees to such appointment on its behalf. The~~ Collateral Agent ~~shall have~~ by the ~~privileges~~terms of this Agreement and such Security Agreement, together with such other powers as are reasonably incidental thereto, including, without limitation, the authority to sign such financing statements, continuation statements, and ~~immunities~~ make such filings with the U.S. Patent and Trademark Office as ~~set forth in this Indenture~~ are necessary to perfect and protect the security interests and liens of the Holders under the Security ~~Documents~~Agreement. Notwithstanding any provision to the ~~contrary contained~~ contrary, elsewhere in this ~~Indenture~~Agreement, ~~the Security Documents or the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in nature, and~~ the Collateral Agent shall not have any duties or ~~responsibilities,~~ responsibilities except those expressly set forth herein ~~and in the Security Documents and the Intercreditor Agreements to which the Collateral Agent is a party, nor shall the Collateral Agent have~~ or ~~be deemed to have~~ any ~~trust or other~~ fiduciary relationship with ~~the Trustee,~~ any Holder~~, the Issuer or any Subsidiary Guarantor~~, and no implied covenants, functions, responsibilities, duties, ~~obligations~~ obligations, or liabilities shall be read into this ~~Indenture,~~ Agreement or the Security ~~Documents~~ Agreement or ~~the Intercreditor Agreements~~ any document executed in connection herewith or shall 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. (Bb) The Issuer and the Subsidiary Guarantors hereby agrees that the Collateral Agent shall 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, and in accordance with, the terms of the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder. The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (C) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements. (D) The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither Neither the Collateral Agent nor any company with which he is affiliated, nor any of ~~its~~ the directors, officers, ~~directors,~~ agents or employees ~~or agents~~ of such company shall be ~~responsible~~ liable for any ~~act~~ action taken or ~~failure~~ omitted to ~~act hereunder~~ be taken by him or them under ~~any~~ or in connection with this Agreement or the Security ~~Documents~~ Agreement in the absence of his or ~~Intercreditor Agreements to which it is a party, except for its~~ their own gross negligence or willful misconduct. 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 been grossly negligent in ascertaining the pertinent facts. (E) The Collateral Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence Without limitation of the ~~Trustee or~~ generality of the Majority Holders 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. Except as otherwise provided in the Security Documentsforegoing, the Collateral Agent ~~shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture,~~ (1) may treat the ~~Security Documents or~~ payee of any Note as the Intercreditor Agreements in accordance with a request, direction, instruction or consent of the Trustee or the Majority Holders and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders. If the Collateral Agent shall request direction from the Majority Holders with respect to any action, the Collateral Agent shall be entitled to refrain from taking such action unless and holder thereof until the Collateral Agent shall have received direction from the Majority Holders, and the Collateral Agent shall not incur liability to any Person by reason of so refraining. (F) 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 Majority Holders (subject to this Section 11.01(F)), subject to the terms receives written notice of the ~~Security Documents. (G) Except as otherwise explicitly provided herein~~ assignment or transfer thereof signed by such payee and in the Security Documents or the Intercreditor Agreements, neither the Collateral Agent nor any of its respective officers, directors, employees or agents or other Affiliates 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. (H) 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 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 and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements, 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 form satisfactory to the Collateral Agent~~, in kind, and~~ ; (2) may consult with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders or to the Trustee, in the case of the Collateral Agent, to assure that the Collateral exists or is owned by the Issuer or any Subsidiary 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 of the Issuer’s or any Subsidiary Guarantor’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 value, genuineness, validity, ownership, 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 or the Intercreditor Agreements other than to exercise such rights, authorities and powers pursuant to the instructions of the Trustee or the Majority Holders or as otherwise provided in the Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall the Collateral Agent or the Trustee 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 Agreements legal counsel (including ~~without limitation~~ counsel for the ~~filing or continuation of any Uniform Commercial Code financing or continuation statements or similar documents or instruments~~Spatialight), 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. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income thereon. 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 independent public accountants and other experts selected by him and shall not be liable ~~or responsible~~ for any ~~loss~~ action taken or ~~diminution~~ omitted to be taken in ~~value~~ good faith by him in accordance with the advice of such counsel, 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 ~~Collateral~~terms, ~~including~~covenants, ~~without limitation, by reason~~ or conditions of the ~~act~~ Security Agreement on the part of Spatialight, or ~~omission~~ 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. (c) 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 liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any ~~carrier~~kind or nature whatsoever which may be imposed on, ~~forwarding agency~~ incurred by, or ~~other agent~~ asserted against the Collateral Agent in any way relating to or ~~bailee selected~~ 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 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 ~~good faith~~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. ~~The~~ 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 ~~permitted to use overnight carriers to transmit possessory collateral~~ discharged from his duties and ~~shall be not liable for~~ obligations under this Agreement. After any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the retiring Collateral Agent. The Holders, through their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 's resignation or the Trustee, any Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the removal hereunder as Collateral Agent~~. The Holders~~, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, 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 7.15 and the other provisions of~~ this ~~Indenture. (N) In acting under this Indenture or any other Note Document, the Collateral Agent~~ document shall ~~have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded~~ inure to the ~~Trustee (including its rights~~ benefit as to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Collateral Agent, in such capacity. (O) 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 Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (P) 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 Agreements, 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~~ omitted to be taken by it while it was Collateral Agent under this Indenture, the Intercreditor Agreements 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 AgeAgreement.

Appears in 1 contract

Sources: Note Holders' Representative Agreement (Tripp Steven Francis)

Collateral Agent. ~~(A)~~ The ~~Issuer~~ Trustee and each of the Holders by acceptance of the Securities hereby authorize the appointment of the Collateral Agent as the Trustee’s and the ~~Subsidiary Guarantors hereby appoint U.S. Bank Trust Company, National Association~~ Holders’ Collateral Agent under the Security Documents and in its capacity as mortgagee and security trustee pursuant to ~~act as~~ the Collateral ~~Agent~~Rig Mortgage, and the Trustee and each ~~Holder,~~ of the Holders by ~~its~~ acceptance of ~~any Notes and~~ the ~~Subsidiary Guarantees thereof,~~ Securities hereby irrevocably ~~consents and agrees to such appointment on its behalf. The~~ authorize the Collateral Agent ~~shall have~~ to enter into the ~~privileges,~~ Security Documents and to take such action on their behalf under the provisions of the Security Documents and to exercise such powers and ~~immunities~~ perform such duties as ~~set forth in~~ 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 provision to the contrary contained elsewhere in this ~~Indenture,~~ Indenture and the Security ~~Documents or the Intercreditor Agreements~~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 Security Documents ~~and the Intercreditor Agreements~~ to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or ~~other~~ fiduciary relationship with the Trustee, any Holder, the ~~Issuer~~ Company, any Collateral Grantor or any ~~Subsidiary~~ Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this ~~Indenture,~~ Indenture and the Security Documents ~~or the Intercreditor Agreements~~ or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties~~. (B)~~ . The ~~Issuer~~ Trustee is authorized and directed by the Holders and the ~~Subsidiary Guarantors hereby agrees that~~ Holders by acquiring the Securities are deemed to have authorized the Trustee, as applicable, to cause the Collateral Agent ~~shall hold the Collateral on behalf of~~ to enter into and ~~for the benefit of all of the Holders, the Trustee and the Collateral Agent, in each case pursuant to, and in accordance with, the terms of~~ perform its obligations under the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunderDocuments. The Collateral Agent is ~~each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only~~ authorized and directed by ~~possession. Should~~ the Trustee ~~obtain possession of any such Collateral,~~ and the ~~Trustee shall notify~~ Holders and the ~~Collateral Agent thereof and promptly shall deliver such Collateral~~ Holders by acquiring the Securities are deemed to ~~the Collateral Agent or otherwise deal with such Collateral in accordance with~~ have authorized the Collateral Agent~~’s instructions. (C) Each Holder~~, ~~by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees~~ to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewithto which it is a party, (ii) ~~make~~ bind the ~~representations of the Holders set forth in the Security Documents~~ Trustee and ~~the Intercreditor Agreements, and (iii) bind~~ the Holders on the terms as set forth in ~~the~~ 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 ~~Intercreditor Agreements.~~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 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”), if any, 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 security created or evidenced or expressed to be 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, as fiduciary (treuhänderisch) in its own name but for the 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 (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 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 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) ~~The Collateral Agent shall be accountable only for amounts that it actually receives~~ to exercise as ~~a result of the exercise of~~ its direct representative (direkter Stellvertreter) such ~~powers, and neither~~ other rights granted to the Collateral Agent ~~nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder or~~ under ~~any~~ this Indenture and under the relevant Swiss Security ~~Documents or Intercreditor Agreements to which it is a party, except for its own gross negligence or willful misconduct~~Document. The Collateral Agent shall not be deemed to have ~~no liability for~~ knowledge or notice of the occurrence of any ~~action taken,~~ Default or ~~errors in judgment made, in good faith by it or any~~ Event of ~~its officers, employees or agents~~Default, unless it shall have been grossly negligent in ascertaining the pertinent facts. (E) The Collateral Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Majority Holders 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. Except as otherwise provided in the Security Documents, the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent of the Trustee or the Majority Holders and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders. If the Collateral Agent shall request direction from the Majority Holders with respect to any action, the Collateral Agent shall be entitled to refrain from taking such action unless and until the Collateral Agent shall have received ~~direction~~ written notice from the ~~Majority Holders, and~~ Trustee or unless a written notice of any event which is in fact such a Default is received by the Collateral Agent ~~shall not incur liability to any Person by reason of so refraining. (F)~~ at the address specified in Section 15.01, and such notice references the Securities and this Indenture. The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the ~~Majority~~ Holders of a majority in aggregate principal amount of the Securities (subject to this Section ~~11.01(F~~12.05)~~), subject~~ . The Collateral Agent shall have no obligation and makes no representation whatsoever to the ~~terms~~ Trustee or any of the Holders as to the existence, genuineness, value or protection of the Collateral or the sufficiency of any Security Documents~~. (G) Except as otherwise explicitly provided herein~~ , or ~~in the Security Documents or the Intercreditor Agreements, neither~~ that the Collateral ~~Agent nor any of its respective officers, directors, employees or agents or other Affiliates shall be liable for failure to demand, collect or realize upon~~ is owned by 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. (H) 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 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 and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements, 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 such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders or to the Trustee, in the case of the Collateral Agent, to assure that the Collateral exists or is owned by the Issuer or any Subsidiary Guarantor Grantors or is cared for, ~~protected,~~ protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the ~~Issuer’s or any Subsidiary Guarantor~~Collateral 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 ~~value,~~ genuineness, validity~~, ownership~~, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, ~~disclosure,~~ disclosure or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this ~~Indenture~~Indenture or any other Security Documents, it being understood and agreed that in respect of the Collateral, or any ~~Security Document~~ act, omission, or event related thereto, the ~~Intercreditor Agreements~~ Collateral Agent shall have no other ~~than~~ duty or liability whatsoever to ~~exercise such rights, authorities and powers pursuant to the instructions of~~ the Trustee or any Holder as to any of the ~~Majority Holders~~ foregoing. The grant of permissive rights or ~~as otherwise provided in the Security Documents. Further~~ powers to ~~the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall~~ 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 ~~the Trustee~~ continuation statements, to record any documents or instruments in any public office at any time or be responsible ~~for,~~ for perfection or ~~have any duty or obligation with respect to,~~ maintaining the ~~recording, filing, registering, perfection, protection or maintenance~~ perfection of the security interests ~~or Liens intended~~ purported to be created by ~~this Indenture,~~ the Security Documents or and such responsibility shall be solely that of the ~~Intercreditor Agreements (including without limitation the filing or continuation~~ Company. Each of ~~any Uniform Commercial Code financing or continuation statements or similar documents or instruments), nor shall~~ the Collateral Agent ~~be responsible for~~and the Trustee, 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. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral each in its possession or control or any income thereon. 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 capacity as such, shall not be liable or responsible for the failure of the Company or any ~~loss or diminution in value of any of~~ Collateral Grantor to maintain insurance on the Collateral, ~~including, without limitation,~~ nor shall it be responsible for any loss due to the insufficiency of such insurance or by reason of the ~~act or omission~~ failure of any ~~carrier~~insurer to pay the full amount of any loss against which it may have insured to the Company or any Collateral Grantor, ~~forwarding agency or other agent or bailee selected by~~ the Collateral Agent in good faith. The Collateral Agent shall be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (a “Security Document Order”)Trustee, the Collateral Agent ~~is hereby authorized~~ or any other Person. The provisions of Article 7, mutatis mutandis, shall apply 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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. The ~~Holders~~Trustee is authorized and directed by the Holders and the Holders by acquiring the Securities are deemed to have authorized the Trustee, ~~through their acceptance of the Notes~~as applicable, ~~hereby authorize and direct~~ to cause the Collateral Agent to ~~execute such Security Documents. (L) Upon receipt by the Collateral Agent~~ enter into and perform its obligations each Deed of ~~a Security Document Order, the~~ Quiet Enjoyment. The Collateral Agent is ~~hereby~~ authorized and directed by the Trustee and the Holders and the Holders by acquiring the Securities are deemed to ~~execute and enter into~~have authorized the Collateral Agent, ~~and shall execute and enter into, without the further consent of any Holder or the Trustee, any Intercreditor Agreement~~ to ~~be entered into after the Issue Date. Such Security Document Order shall~~ (i) ~~state that~~ enter into each Deed of Quiet Enjoyment to which it is ~~being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L)~~a party, (ii) ~~certify that~~ bind the Trustee and the Holders on the terms as set forth in each such ~~Intercreditor Agreement complies with~~ 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 ~~and~~ or the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agentapplicable Deed of Quiet Enjoyment. ~~The Holders~~Each Holder, by ~~their~~ its acceptance of ~~the Notes~~a Security, ~~authorize~~ is deemed to have consented and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and agreed to the ~~extent not prohibited under the Intercreditor Agreements~~terms of each Deed of Quiet Enjoyment, ~~for turnover~~ as originally in effect and as amended, restated, replaced, supplemented or modified from time to ~~the Trustee to make further distributions of such funds to itself, the Trustee and the Holders~~ time in accordance with its terms or the ~~provisions of Section 7.15 and the other provisions~~ terms of this Indenture. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Collateral Agent, in such capacity. (O) 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 Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (P) 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 Agreements, 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 or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Age

Appears in 1 contract

Sources: Indenture (Transocean Ltd.)

Collateral Agent. (Aa) ~~The Issuer~~ Each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Note Purchase Agreement and the ~~Subsidiary Guarantors hereby appoint U.S. Bank Trust Company, National Association to act as~~ Collateral ~~Agent,~~ Documents and each ~~Holder,~~ of the Holders by ~~its~~ acceptance of ~~any~~ the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Note Purchase Agreement and the ~~Subsidiary Guarantees thereof~~Collateral Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Note Purchase Agreement and the Collateral Documents, ~~irrevocably consents and agrees to~~ together with such ~~appointment on its behalf~~powers as are reasonably incidental thereto. The provisions of this Section 15.09 are solely for the benefit of the Collateral Agent and neither any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the ~~privileges, powers and immunities~~ provisions contained herein other than as ~~set forth~~ expressly provided in ~~this Indenture and the Security Documents~~Section 15.02. Notwithstanding any provision to the contrary contained elsewhere in this ~~Indenture, the Security Documents or the Intercreditor Agreements, the duties of~~ Note Purchase Agreement and the Collateral ~~Agent shall be ministerial and administrative in nature~~Documents, ~~and~~ the Collateral Agent shall not have any duties or ~~responsibilities,~~ responsibilities hereunder except those expressly ~~set forth~~ stated herein ~~and in the Security Documents and the Intercreditor Agreements to which the Collateral Agent is a party,~~ nor shall the Collateral Agent have or be deemed to have any ~~trust or other~~ fiduciary relationship with ~~the Trustee,~~ any ~~Holder, the Issuer~~ Holder or any ~~Subsidiary Guarantor~~Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this ~~Indenture,~~ Note Purchase Agreement and the ~~Security~~ Collateral Documents ~~or the Intercreditor Agreements~~ or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this ~~Indenture~~ Note Purchase Agreement with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties~~. (B) The Issuer~~ . Except as expressly otherwise provided in this Note Purchase Agreement, the Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral Agent is expressly entitled to take or assert under this Note Purchase Agreement, and the ~~Subsidiary Guarantors hereby agrees~~ Collateral Documents, including the exercise of remedies pursuant to Article 11, and any action so taken or not taken shall be deemed consented to by the Holders. Notwithstanding the foregoing, the Collateral Agent shall be entitled to refrain from the taking of any action (including the failure to take an action) in connection herewith or with any of the Collateral Documents or from the exercise of any power, discretion or authority vested in it hereunder or thereunder, including both before and after an Event of Default has occurred, unless and until the Collateral Agent shall have received instructions in respect thereof from the Holders of a majority in aggregate principal amount of the Notes then outstanding (or such other Holders as may be required, or as the Collateral Agent shall believe in good faith to be required, to give such instructions under this Note Purchase Agreement) and, upon receipt of such instructions from such Holders (or such other Holders, as the case may be), the Collateral Agent shall be entitled to act or (where so instructed) refrain from acting, or to exercise such power, discretion or authority, in accordance with such instructions; provided that the Collateral Agent shall ~~hold~~ not be required to take any action that, in its opinion, could expose the Collateral ~~on behalf~~ Agent to liability or be contrary to any Collateral Document or applicable law, including any action that may be in violation of the automatic stay under the Bankruptcy Code. (b) None of the Collateral Agent or any of its respective Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Note Purchase Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), (ii) be liable for any action taken at the direction of the Holders of a majority in aggregate principal amount of the Notes then outstanding (or such other Holders as may be required, or as the Collateral Agent shall believe in good faith to be required, to give such instructions under this Note Purchase Agreement),or (iii) be responsible in any manner to any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any Grantor or Affiliate of any Grantor, or any officer or Affiliate thereof, contained in this Note Purchase Agreement or any indenture, any Collateral 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 or any other indenture or the Collateral Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this or any other indenture or the Collateral Documents, or for any failure of any Grantor or any other party to this Note Purchase Agreement or the Collateral Documents to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective Affiliates shall be under any obligation to any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Note Purchase Agreement or any other indenture or the Collateral Documents or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates. (c) The Collateral Agent and its Affiliates may make loans to, issue letters of credit for the ~~benefit~~ account of, accept deposits from, acquire equity interests in and generally engage in any kind of ~~all of~~ banking, trust, financial advisory, underwriting, or other business with the ~~Holders~~Issuer, ~~the Trustee~~ any Guarantor and their Affiliates as though it was not the Collateral ~~Agent~~Agent hereunder. The Holders acknowledge that, ~~in each case~~ pursuant to, and in accordance with, the terms of the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holdersto such activities, the Collateral Agent or its Affiliates may receive information regarding any Grantor or its respective Affiliates (including information that may be subject to confidentiality obligations in favor of, any such Grantor or such Affiliate) and ~~the Trustee, and~~ acknowledge that ~~the Lien of this Indenture and the Security Documents in respect of the Trustee,~~ the Collateral Agent shall not be under any obligation to provide such information to the Holders. Nothing herein shall impose or imply any obligation on the part of the Collateral Agent to advance funds. (d) The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) bind the Holders ~~is subject to and qualified and limited~~ on the terms as set forth in ~~all respects by~~ the ~~Security~~ Collateral Documents and (iii) perform and observe its obligations under the ~~Intercreditor Agreements and actions that may be taken thereunder.~~ Collateral Documents. (e) The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in ~~the Collateral~~ assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (Cf) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements. (D) The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder or under any Security Documents or Intercreditor Agreements to which it is a party, except for its own gross negligence or willful misconduct. 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 been grossly negligent in ascertaining the pertinent facts. (E) The Collateral Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Majority Holders 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. Except as otherwise provided in the Security Documents, the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent of the Trustee or the Majority Holders and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders. If the Collateral Agent shall request direction from the Majority Holders with respect to any action, the Collateral Agent shall be entitled to refrain from taking such action unless and until the Collateral Agent shall have received direction from the Majority Holders, and the Collateral Agent shall not incur liability to any Person by reason of so refraining. (F) 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 Majority Holders (subject to this Section 11.01(F)), subject to the terms of the Security Documents. (G) Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements, neither the Collateral Agent nor any of its respective officers, directors, employees or agents or other Affiliates 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. (H) 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 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 and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements, 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 such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders ~~or to the Trustee, in the case of the Collateral Agent,~~ to assure that the Collateral exists or is owned by ~~the Issuer or~~ any ~~Subsidiary Guarantor~~ Grantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of or the ~~Issuer’s~~ Issuer or any ~~Subsidiary~~ Guarantor’s property constituting ~~Collateral~~ collateral intended to be subject to the Lien and security interest of the ~~Security~~ Collateral Documents has been properly and completely listed or delivered, as the case may be, or the ~~value,~~ genuineness, validity~~, ownership~~, 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~~Note Purchase Agreement or any Collateral Document, ~~any Security Document or the Intercreditor Agreements other than to exercise such rights, authorities~~ it being understood and ~~powers pursuant to the instructions~~ agreed that in respect of the ~~Trustee or the Majority Holders or as otherwise provided in the Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document~~ Collateral, or any ~~Intercreditor Agreement~~act, ~~in no~~ omission, or event ~~shall~~ related thereto, the Collateral Agent or may act in any manner it may deem appropriate, in its sole discretion given the ~~Trustee be responsible for, or have any duty or obligation with respect to,~~ Collateral Agent’s own interest in 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 Agreements (including without limitation the filing or continuation of any Uniform Commercial Code financing or continuation statements or similar documents or instruments), nor shall Collateral and that the Collateral Agent ~~be responsible for,~~ shall have no other duty or ~~makes~~ liability whatsoever to any ~~representation regarding,~~ Holder as to any of the ~~validity, effectiveness~~ foregoing. (g) No provision of this Note Purchase Agreement or ~~priority~~ 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 ~~the Security Documents~~ its duties hereunder or ~~the security interests~~ thereunder or ~~Liens intended~~ to ~~be created thereby. (J) The Collateral Agent~~ take or omit to take any action hereunder or thereunder if it shall ~~exercise~~ have reasonable ~~care in the custody~~ grounds for believing that repayment of ~~any Collateral in its possession or control or any income thereon~~such funds is not assured to it. The Collateral Agent shall be ~~deemed~~ under no duty to exercise any of its rights or powers under this Note Purchase Agreement or any Collateral Document at the request or direction of any of the Holders unless the Holders have ~~exercised reasonable care in the custody of Collateral in its possession if~~ offered to the Collateral ~~is accorded treatment substantially equal~~ Agent indemnity or security satisfactory to ~~that which they accord similar property held for its own benefit and~~ it against any loss, liability or expense. (h) The Collateral Agent (i) shall not be liable ~~or responsible~~ for any ~~loss~~ action it takes or ~~diminution~~ omits to take in ~~value~~ good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a responsible officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any of money received by it except as the ~~Collateral, including, without limitation, by reason of~~ Collateral Agent may agree in writing with the ~~act or omission of any carrier, forwarding agency or other agent or bailee selected~~ Issuer (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law), (iii) the Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good ~~faith~~faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act. (i) The Collateral Agent shall not be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. The Collateral Agent shall not be ~~permitted to use overnight carriers to transmit possessory collateral and shall be not~~ liable for any ~~items~~ indirect, special or consequential damages (included but not limited to lost ~~or damages in transmit~~profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action. (Kj) ~~Upon~~ The Collateral Agent may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the ~~receipt~~ proper Person. (k) Before the Collateral Agent acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Collateral Agent shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. (l) The Collateral Agent shall not be deemed to have notice of any Default or Event of Default unless an offficer of the Collateral Agent with direct responsibility for the administration of this Note Purchase Agreement has actual knowledge thereof or unless written notice of any event which is in fact such a Default or Event of Default is received by the Collateral Agent ~~of a written request of~~ at the ~~Issuer signed by an Officer (a “Security Document Order”), the Collateral Agent is hereby authorized to execute and enter into~~address specified in Section 18.01 hereof, and ~~shall execute~~ such notice references the Notes 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~~ this Note Purchase Agreement. (im) state that it is being delivered to the Collateral Agent pursuant to, and is a Security Document Order referred to in, this Section 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in In no event shall the Collateral Agent be ~~required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. The Holders~~responsible or liable for special, ~~through their acceptance of the Notes~~indirect, hereby authorize and direct the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 or consequential loss or damage of any ~~Holder or the Trustee, any Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall~~ kind whatsoever (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, 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 7.15 and the other provisions of this Indenture. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Collateral Agent, in such capacity. (O) 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 Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (P) 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~~loss of profit) irrespective of any kind whatsoever, pursuant to any environmental law as a result of this Indenture, the Intercreditor Agreements, 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, whether the Collateral Agent ~~or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest~~ has been advised of the likelihood of such loss or damage and regardless of the form of action. (n) If the Collateral ~~Age~~Agent consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Collateral Agent. (o) The Collateral Agent shall have no duty (i) to cause the maintenance of any insurance, (ii) with respect to the payment or discharge of any tax, or (iii) with respect to the filing or refiling of any Collateral Document.

Appears in 1 contract

Sources: Note Purchase Agreement (APX Group Holdings, Inc.)

Collateral Agent. ~~(A)~~ The ~~Issuer~~ Trustee and each of the Holders by acceptance of the Securities hereby authorize the appointment of the Collateral Agent as the Trustee’s and the ~~Subsidiary Guarantors hereby appoint U.S. Bank Trust Company, National Association~~ Holders’ Collateral Agent under the Security Documents and in its capacity as mortgagee and security trustee pursuant to ~~act as~~ the Collateral ~~Agent~~Rig Mortgages, and the Trustee and each ~~Holder,~~ of the Holders by ~~its~~ acceptance of ~~any Notes and~~ the ~~Subsidiary Guarantees thereof,~~ Securities hereby irrevocably ~~consents and agrees to such appointment on its behalf. The~~ authorize the Collateral Agent ~~shall have~~ to enter into the ~~privileges,~~ Security Documents and to take such action on their behalf under the provisions of the Security Documents and to exercise such powers and ~~immunities~~ perform such duties as ~~set forth in~~ 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 provision to the contrary contained elsewhere in this ~~Indenture,~~ Indenture and the Security ~~Documents or the Intercreditor Agreements~~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 Security Documents ~~and the Intercreditor Agreements~~ to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or ~~other~~ fiduciary relationship with the Trustee, any Holder, the ~~Issuer~~ Company, any Collateral Grantor or any ~~Subsidiary~~ Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this ~~Indenture,~~ Indenture and the Security Documents ~~or the Intercreditor Agreements~~ or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties~~. (B)~~ . The ~~Issuer~~ Trustee is authorized and directed by the Holders and the ~~Subsidiary Guarantors hereby agrees that~~ Holders by acquiring the Securities are deemed to have authorized the Trustee, as applicable, to cause the Collateral Agent ~~shall hold the Collateral on behalf of~~ to enter into and ~~for the benefit of all of the Holders, the Trustee and the Collateral Agent, in each case pursuant to, and in accordance with, the terms of~~ perform its obligations under the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunderDocuments. The Collateral Agent is ~~each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only~~ authorized and directed by ~~possession. Should~~ the Trustee ~~obtain possession of any such Collateral,~~ and the ~~Trustee shall notify~~ Holders and the ~~Collateral Agent thereof and promptly shall deliver such Collateral~~ Holders by acquiring the Securities are deemed to ~~the Collateral Agent or otherwise deal with such Collateral in accordance with~~ have authorized the Collateral Agent~~’s instructions. (C) Each Holder~~, ~~by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees~~ to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewithto which it is a party, (ii) ~~make~~ bind the ~~representations of the Holders set forth in the Security Documents~~ Trustee and ~~the Intercreditor Agreements, and (iii) bind~~ the Holders on the terms as set forth in ~~the~~ 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 ~~Intercreditor Agreements. (D) The Collateral Agent shall be accountable only for amounts that it actually receives~~ 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 ~~a result~~ 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 ~~exercise of such powers, and neither~~ Holders by acquiring the Securities is hereby deemed to have directed the Trustee to appoint the Collateral Agent ~~nor any of~~ as its ~~officers~~mortgagee and security trustee to receive, ~~directors~~hold, ~~employees or agents shall be responsible for any act or failure to act hereunder or~~ administer and enforce the Collateral Rig Mortgages covering the Collateral Rigs, as contemplated under ~~any Security Documents or Intercreditor Agreements to which it is a party, except for its own gross negligence or willful misconduct~~this Indenture. The Collateral Agent shall not be deemed to have ~~no liability for~~ knowledge or notice of the occurrence of any ~~action taken,~~ Default or ~~errors in judgment made, in good faith by it or any~~ Event of ~~its officers, employees or agents~~Default, unless it shall have been grossly negligent in ascertaining the pertinent facts. (E) The Collateral Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Majority Holders 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. Except as otherwise provided in the Security Documents, the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent of the Trustee or the Majority Holders and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders. If the Collateral Agent shall request direction from the Majority Holders with respect to any action, the Collateral Agent shall be entitled to refrain from taking such action unless and until the Collateral Agent shall have received ~~direction~~ written notice from the ~~Majority Holders, and~~ Trustee or unless a written notice of any event which is in fact such a Default is received by the Collateral Agent ~~shall not incur liability to any Person by reason of so refraining. (F)~~ at the address specified in Section 14.01, and such notice references the Securities and this Indenture. The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the ~~Majority~~ Holders of a majority in aggregate principal amount of the Securities (subject to this Section ~~11.01(F~~12.05)~~), subject~~ . The Collateral Agent shall have no obligation and makes no representation whatsoever to the ~~terms~~ Trustee or any of the Holders as to the existence, genuineness, value or protection of the Collateral or the sufficiency of any Security Documents~~. (G) Except as otherwise explicitly provided herein~~ , or ~~in the Security Documents or the Intercreditor Agreements, neither~~ that the Collateral ~~Agent nor any of its respective officers, directors, employees or agents or other Affiliates shall be liable for failure to demand, collect or realize upon~~ is owned by 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. (H) 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 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 and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements, 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 such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders or to the Trustee, in the case of the Collateral Agent, to assure that the Collateral exists or is owned by the Issuer or any Subsidiary Guarantor Grantors or is cared for, ~~protected,~~ protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the ~~Issuer’s or any Subsidiary Guarantor~~Collateral 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 ~~value,~~ genuineness, validity~~, ownership~~, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, ~~disclosure,~~ disclosure or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this ~~Indenture~~Indenture or any other Security Documents, it being understood and agreed that in respect of the Collateral, or any ~~Security Document~~ act, omission, or event related thereto, the ~~Intercreditor Agreements~~ Collateral Agent shall have no other ~~than~~ duty or liability whatsoever to ~~exercise such rights, authorities and powers pursuant to the instructions of~~ the Trustee or any Holder as to any of the ~~Majority Holders~~ foregoing. The grant of permissive rights or ~~as otherwise provided in the Security Documents. Further~~ powers to ~~the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall~~ 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 ~~the Trustee~~ continuation statements, to record any documents or instruments in any public office at any time or be responsible ~~for,~~ for perfection or ~~have any duty or obligation with respect to,~~ maintaining the ~~recording, filing, registering, perfection, protection or maintenance~~ perfection of the security interests ~~or Liens intended~~ purported to be created by ~~this Indenture,~~ the Security Documents or and such responsibility shall be solely that of the ~~Intercreditor Agreements (including without limitation the filing or continuation~~ Company. Each of ~~any Uniform Commercial Code financing or continuation statements or similar documents or instruments), nor shall~~ the Collateral Agent ~~be responsible for~~and the Trustee, 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. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral each in its possession or control or any income thereon. 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 capacity as such, shall not be liable or responsible for the failure of the Company or any ~~loss or diminution in value of any of~~ Collateral Grantor to maintain insurance on the Collateral, ~~including, without limitation,~~ nor shall it be responsible for any loss due to the insufficiency of such insurance or by reason of the ~~act or omission~~ failure of any ~~carrier, forwarding agency~~ insurer to pay the full amount of any loss against which it may have insured to the Company or ~~other agent or bailee selected by the~~ any Collateral Agent in good faith. The Collateral Agent shall be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (a “Security Document Order”)Grantor, 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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. The Holders, through their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, 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 7.15 and the other provisions of this Indenture. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Collateral Agent, in such capacity. (O) 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 Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (P) 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 Agreements, 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 or ~~the Trustee may hold or obtain indicia~~ any other Person. The provisions of ~~ownership primarily~~ Article 7, mutatis mutandis, shall apply to ~~protect the security interest of~~ the Collateral ~~Age~~Agent.

Appears in 1 contract

Sources: Indenture (Transocean Ltd.)

Collateral Agent. ~~(A)~~ The ~~Issuer~~ Trustee and each of the Holders by acceptance of the Securities hereby authorize the appointment of the Collateral Agent as the Trustee’s and the ~~Subsidiary Guarantors hereby appoint U.S. Bank Trust Company, National Association~~ Holders’ Collateral Agent under the Security Documents and in its capacity as mortgagee and security trustee pursuant to ~~act as~~ the Collateral ~~Agent~~Rig Mortgage, and the Trustee and each ~~Holder,~~ of the Holders by ~~its~~ acceptance of ~~any Notes and~~ the ~~Subsidiary Guarantees thereof,~~ Securities hereby irrevocably ~~consents and agrees to such appointment on its behalf. The~~ authorize the Collateral Agent ~~shall have~~ to enter into the ~~privileges,~~ Security Documents and to take such action on their behalf under the provisions of the Security Documents and to exercise such powers and ~~immunities~~ perform such duties as ~~set forth in~~ 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 provision to the contrary contained elsewhere in this ~~Indenture,~~ Indenture and the Security ~~Documents or the Intercreditor Agreements~~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 Security Documents ~~and the Intercreditor Agreements~~ to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or ~~other~~ fiduciary relationship with the Trustee, any Holder, the ~~Issuer~~ Company, any Collateral Grantor or any ~~Subsidiary~~ Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this ~~Indenture,~~ Indenture and the Security Documents ~~or the Intercreditor Agreements~~ or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties~~. (B)~~ . The ~~Issuer~~ Trustee is authorized and directed by the Holders and the ~~Subsidiary Guarantors hereby agrees that~~ Holders by acquiring the Securities are deemed to have authorized the Trustee, as applicable, to cause the Collateral Agent ~~shall hold the Collateral on behalf of~~ to enter into and ~~for the benefit of all of the Holders, the Trustee and the Collateral Agent, in each case pursuant to, and in accordance with, the terms of~~ perform its obligations under the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunderDocuments. The Collateral Agent is ~~each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only~~ authorized and directed by ~~possession. Should~~ the Trustee ~~obtain possession of any such Collateral,~~ and the ~~Trustee shall notify~~ Holders and the ~~Collateral Agent thereof and promptly shall deliver such Collateral~~ Holders by acquiring the Securities are deemed to ~~the Collateral Agent or otherwise deal with such Collateral in accordance with~~ have authorized the Collateral Agent~~’s instructions. (C) Each Holder~~, ~~by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees~~ to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewithto which it is a party, (ii) ~~make~~ bind the ~~representations of the Holders set forth in the Security Documents~~ Trustee and ~~the Intercreditor Agreements, and (iii) bind~~ the Holders on the terms as set forth in ~~the~~ 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 ~~Intercreditor Agreements.~~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 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 security created or evidenced or expressed to be 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, as fiduciary (treuhänderisch) in its own name but for the 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 (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 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 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) ~~The Collateral Agent shall be accountable only for amounts that it actually receives~~ to exercise as ~~a result of the exercise of~~ its direct representative (direkter Stellvertreter) such ~~powers, and neither~~ other rights granted to the Collateral Agent ~~nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder or~~ under ~~any~~ this Indenture and under the relevant Swiss Security ~~Documents or Intercreditor Agreements to which it is a party, except for its own gross negligence or willful misconduct~~Document. The Collateral Agent shall not be deemed to have ~~no liability for~~ knowledge or notice of the occurrence of any ~~action taken,~~ Default or ~~errors in judgment made, in good faith by it or any~~ Event of ~~its officers, employees or agents~~Default, unless it shall have been grossly negligent in ascertaining the pertinent facts. (E) The Collateral Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Majority Holders 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. Except as otherwise provided in the Security Documents, the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent of the Trustee or the Majority Holders and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders. If the Collateral Agent shall request direction from the Majority Holders with respect to any action, the Collateral Agent shall be entitled to refrain from taking such action unless and until the Collateral Agent shall have received ~~direction~~ written notice from the ~~Majority Holders, and~~ Trustee or unless a written notice of any event which is in fact such a Default is received by the Collateral Agent ~~shall not incur liability to any Person by reason of so refraining. (F)~~ at the address specified in Section 14.01, and such notice references the Securities and this Indenture. The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the ~~Majority~~ Holders of a majority in aggregate principal amount of the Securities (subject to this Section ~~11.01(F~~12.05)~~), subject~~ . The Collateral Agent shall have no obligation and makes no representation whatsoever to the ~~terms~~ Trustee or any of the Holders as to the existence, genuineness, value or protection of the Collateral or the sufficiency of any Security Documents~~. (G) Except as otherwise explicitly provided herein~~ , or ~~in the Security Documents or the Intercreditor Agreements, neither~~ that the Collateral ~~Agent nor any of its respective officers, directors, employees or agents or other Affiliates shall be liable for failure to demand, collect or realize upon~~ is owned by 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. (H) 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 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 and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements, 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 such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders or to the Trustee, in the case of the Collateral Agent, to assure that the Collateral exists or is owned by the Issuer or any Subsidiary Guarantor Grantors or is cared for, ~~protected,~~ protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the ~~Issuer’s or any Subsidiary Guarantor~~Collateral 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 ~~value,~~ genuineness, validity~~, ownership~~, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, ~~disclosure,~~ disclosure or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this ~~Indenture~~Indenture or any other Security Documents, it being understood and agreed that in respect of the Collateral, or any ~~Security Document~~ act, omission, or event related thereto, the ~~Intercreditor Agreements~~ Collateral Agent shall have no other ~~than~~ duty or liability whatsoever to ~~exercise such rights, authorities and powers pursuant to the instructions of~~ the Trustee or any Holder as to any of the ~~Majority Holders~~ foregoing. The grant of permissive rights or ~~as otherwise provided in the Security Documents. Further~~ powers to ~~the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall~~ 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 ~~the Trustee~~ continuation statements, to record any documents or instruments in any public office at any time or be responsible ~~for,~~ for perfection or ~~have any duty or obligation with respect to,~~ maintaining the ~~recording, filing, registering, perfection, protection or maintenance~~ perfection of the security interests ~~or Liens intended~~ purported to be created by ~~this Indenture,~~ the Security Documents or and such responsibility shall be solely that of the ~~Intercreditor Agreements (including without limitation the filing or continuation~~ Company. Each of ~~any Uniform Commercial Code financing or continuation statements or similar documents or instruments), nor shall~~ the Collateral Agent ~~be responsible for~~and the Trustee, 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. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral each in its possession or control or any income thereon. 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 capacity as such, shall not be liable or responsible for the failure of the Company or any ~~loss or diminution in value of any of~~ Collateral Grantor to maintain insurance on the Collateral, ~~including, without limitation,~~ nor shall it be responsible for any loss due to the insufficiency of such insurance or by reason of the ~~act or omission~~ failure of any ~~carrier~~insurer to pay the full amount of any loss against which it may have insured to the Company or any Collateral Grantor, ~~forwarding agency or other agent or bailee selected by~~ the Collateral Agent in good faith. The Collateral Agent shall be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (a “Security Document Order”)Trustee, the Collateral Agent ~~is hereby authorized~~ or any other Person. The provisions of Article 7, mutatis mutandis, shall apply 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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. The ~~Holders~~Trustee is authorized and directed by the Holders and the Holders by acquiring the Securities are deemed to have authorized the Trustee, ~~through their acceptance of the Notes~~as applicable, ~~hereby authorize and direct~~ to cause the Collateral Agent to ~~execute such Security Documents. (L) Upon receipt by the Collateral Agent~~ enter into and perform its obligations each Deed of ~~a Security Document Order, the~~ Quiet Enjoyment. The Collateral Agent is ~~hereby~~ authorized and directed by the Trustee and the Holders and the Holders by acquiring the Securities are deemed to ~~execute and enter into~~have authorized the Collateral Agent, ~~and shall execute and enter into, without the further consent of any Holder or the Trustee, any Intercreditor Agreement~~ to ~~be entered into after the Issue Date. Such Security Document Order shall~~ (i) ~~state that~~ enter into each Deed of Quiet Enjoyment to which it is ~~being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L)~~a party, (ii) ~~certify that~~ bind the Trustee and the Holders on the terms as set forth in each such ~~Intercreditor Agreement complies with~~ 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 ~~and~~ or the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agentapplicable Deed of Quiet Enjoyment. ~~The Holders~~Each Holder, by ~~their~~ its acceptance of ~~the Notes~~a Security, ~~authorize~~ is deemed to have consented and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and agreed to the ~~extent not prohibited under the Intercreditor Agreements~~terms of each Deed of Quiet Enjoyment, ~~for turnover~~ as originally in effect and as amended, restated, replaced, supplemented or modified from time to ~~the Trustee to make further distributions of such funds to itself, the Trustee and the Holders~~ time in accordance with its terms or the ~~provisions of Section 7.15 and the other provisions~~ terms of this Indenture. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Collateral Agent, in such capacity. (O) 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 Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (P) 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 Agreements, 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 or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Age

Appears in 1 contract

Sources: Indenture (Transocean Ltd.)

Collateral Agent. ~~(A)~~ The ~~Issuer~~ Trustee and each of the Holders by acceptance of the Securities hereby authorize the appointment of the Collateral Agent as the Trustee’s and the ~~Subsidiary Guarantors hereby appoint U.S. Bank Trust Company, National Association~~ Holders’ Collateral Agent under the Security Documents and in its capacity as mortgagee and security trustee pursuant to ~~act as~~ the Collateral ~~Agent~~Rig Mortgages, and the Trustee and each ~~Holder,~~ of the Holders by ~~its~~ acceptance of ~~any Notes and~~ the ~~Subsidiary Guarantees thereof,~~ Securities hereby irrevocably ~~consents and agrees to such appointment on its behalf. The~~ authorize the Collateral Agent ~~shall have~~ to enter into the ~~privileges,~~ Security Documents and to take such action on their behalf under the provisions of the Security Documents and to exercise such powers and ~~immunities~~ perform such duties as ~~set forth in~~ 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 provision to the contrary contained elsewhere in this ~~Indenture,~~ Indenture and the Security ~~Documents or the Intercreditor Agreements~~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 Security Documents ~~and the Intercreditor Agreements~~ to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or ~~other~~ fiduciary relationship with the Trustee, any Holder, the ~~Issuer~~ Company, any Collateral Grantor or any ~~Subsidiary~~ Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this ~~Indenture,~~ Indenture and the Security Documents ~~or the Intercreditor Agreements~~ or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties~~. (B)~~ . The ~~Issuer~~ Trustee is authorized and directed by the Holders and the ~~Subsidiary Guarantors hereby agrees that~~ Holders by acquiring the Securities are deemed to have authorized the Trustee, as applicable, to cause the Collateral Agent ~~shall hold the Collateral on behalf of~~ to enter into and ~~for the benefit of all of the Holders, the Trustee and the Collateral Agent, in each case pursuant to, and in accordance with, the terms of~~ perform its obligations under the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunderDocuments. The Collateral Agent is ~~each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only~~ authorized and directed by ~~possession. Should~~ the Trustee ~~obtain possession of any such Collateral,~~ and the ~~Trustee shall notify~~ Holders and the ~~Collateral Agent thereof and promptly shall deliver such Collateral~~ Holders by acquiring the Securities are deemed to ~~the Collateral Agent or otherwise deal with such Collateral in accordance with~~ have authorized the Collateral Agent~~’s instructions. (C) Each Holder~~, ~~by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees~~ to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewithto which it is a party, (ii) ~~make~~ bind the ~~representations of the Holders set forth in the Security Documents~~ Trustee and ~~the Intercreditor Agreements, and (iii) bind~~ the Holders on the terms as set forth in ~~the~~ 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 ~~Intercreditor Agreements. (D) The Collateral Agent shall be accountable only for amounts that it actually receives~~ 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 ~~a result~~ 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 ~~exercise of such powers, and neither~~ Holders by acquiring the Securities is hereby deemed to have directed the Trustee to appoint the Collateral Agent ~~nor any of~~ as its ~~officers~~mortgagee and security trustee to receive, ~~directors~~hold, ~~employees or agents shall be responsible for any act or failure to act hereunder or~~ administer and enforce the Collateral Rig Mortgages covering the Collateral Rigs, as contemplated under ~~any Security Documents or Intercreditor Agreements to which it is a party, except for its own gross negligence or willful misconduct~~this Indenture. The Collateral Agent shall not be deemed to have ~~no liability for~~ knowledge or notice of the occurrence of any ~~action taken,~~ Default or ~~errors in judgment made, in good faith by it or any~~ Event of ~~its officers, employees or agents~~Default, unless it shall have been grossly negligent in ascertaining the pertinent facts. (E) The Collateral Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Majority Holders 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. Except as otherwise provided in the Security Documents, the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent of the Trustee or the Majority Holders and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders. If the Collateral Agent shall request direction from the Majority Holders with respect to any action, the Collateral Agent shall be entitled to refrain from taking such action unless and until the Collateral Agent shall have received ~~direction~~ written notice from the ~~Majority Holders, and~~ Trustee or unless a written notice of any event which is in fact such a Default is received by the Collateral Agent ~~shall not incur liability to any Person by reason of so refraining. (F)~~ at the address specified in Section 14.01, and such notice references the Securities and this Indenture. The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the ~~Majority~~ Holders of a majority in aggregate principal amount of the Securities (subject to this Section ~~11.01(F~~12.05)~~), subject~~ . The Collateral Agent shall have no obligation and makes no representation whatsoever to the ~~terms~~ Trustee or any of the Holders as to the existence, genuineness, value or protection of the Collateral or the sufficiency of any Security Documents~~. (G) Except as otherwise explicitly provided herein~~ , or ~~in the Security Documents or the Intercreditor Agreements, neither~~ that the Collateral ~~Agent nor any of its respective officers, directors, employees or agents or other Affiliates shall be liable for failure to demand, collect or realize upon~~ is owned by 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. (H) 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 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 and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements, 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 such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders or to the Trustee, in the case of the Collateral Agent, to assure that the Collateral exists or is owned by the Issuer or any Subsidiary Guarantor Grantors or is cared for, ~~protected,~~ protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the ~~Issuer’s or any Subsidiary Guarantor~~Collateral 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 ~~value,~~ genuineness, validity~~, ownership~~, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, ~~disclosure,~~ disclosure or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this ~~Indenture~~Indenture or any other Security Documents, it being understood and agreed that in respect of the Collateral, or any ~~Security Document~~ act, omission, or event related thereto, the ~~Intercreditor Agreements~~ Collateral Agent shall have no other ~~than~~ duty or liability whatsoever to ~~exercise such rights, authorities and powers pursuant to the instructions of~~ the Trustee or any Holder as to any of the ~~Majority Holders~~ foregoing. The grant of permissive rights or ~~as otherwise provided in the Security Documents. Further~~ powers to ~~the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall~~ 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 ~~the Trustee~~ continuation statements, to record any documents or instruments in any public office at any time or be responsible ~~for,~~ for perfection or ~~have any duty or obligation with respect to,~~ maintaining the ~~recording, filing, registering, perfection, protection or maintenance~~ perfection of the security interests ~~or Liens intended~~ purported to be created by ~~this Indenture,~~ the Security Documents or and such responsibility shall be solely that of the ~~Intercreditor Agreements (including without limitation the filing or continuation~~ Company. Each of ~~any Uniform Commercial Code financing or continuation statements or similar documents or instruments), nor shall~~ the Collateral Agent ~~be responsible for~~and the Trustee, 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. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral each in its possession or control or any income thereon. 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 capacity as such, shall not be liable or responsible for the failure of the Company or any ~~loss or diminution in value of any of~~ Collateral Grantor to maintain insurance on the Collateral, ~~including, without limitation,~~ nor shall it be responsible for any loss due to the insufficiency of such insurance or by reason of the ~~act or omission~~ failure of any ~~carrier~~insurer to pay the full amount of any loss against which it may have insured to the Company or any Collateral Grantor, ~~forwarding agency or other agent or bailee selected by~~ the Collateral Agent in good faith. The Collateral Agent shall be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (a “Security Document Order”)Trustee, the Collateral Agent ~~is hereby authorized~~ or any other Person. The provisions of Article 7, mutatis mutandis, shall apply 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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. The ~~Holders, through their acceptance of~~ Holders by acquiring the ~~Notes, hereby authorize and direct the Collateral Agent~~ Securities are deemed to ~~execute such Security Documents. (L) Upon receipt by the Collateral Agent of a Security Document Order, the Collateral Agent is hereby~~ have authorized to execute and enter into, and shall execute and enter into, without the further consent of any Holder or the Trustee, any Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, 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 7.15 and the other provisions of this Indenture. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Collateral Agent, ~~in such capacity. (O) 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 Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies create parallel debt obligations of any ~~property~~ relevant Note Party as will be described in any Dutch Security Document (the “Parallel Debt”), including that an amount paid by any relevant Note Party in respect of a Parallel Debt will discharge the liability of that Note Party under the Mortgages or take any such other action if the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficientcorresponding Notes Obligations. (P) 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 Agreements, 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 or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Age

Appears in 1 contract

Sources: Indenture (Transocean Ltd.)

Collateral Agent. (Aa) ~~The Issuer~~ Each Holder hereby irrevocably designates and appoints the Collateral Agent as the collateral agent under this Agreement and the ~~Subsidiary Guarantors hereby appoint U.S. Bank Trust Company~~other Note Documents, ~~National Association to act as~~ and each such Holder irrevocably authorizes the Collateral Agent, ~~and each Holder~~in such capacity, by to take such action on its ~~acceptance~~ behalf under the provisions of ~~any Notes~~ this Agreement and the ~~Subsidiary Guarantees thereof, irrevocably consents~~ other Note Documents and ~~agrees~~ to exercise such ~~appointment on its behalf. The~~ powers and perform such duties as are expressly delegated to the Collateral Agent ~~shall have~~ by the ~~privileges, powers and immunities as set forth in~~ terms of this ~~Indenture~~ Agreement and the ~~Security~~ other Note Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary ~~contained~~ elsewhere in this ~~Indenture~~Agreement, ~~the Security Documents or the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in nature, and~~ the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein ~~and~~ or in the ~~Security Documents and the Intercreditor Agreements to which the Collateral Agent is a party~~other Note Documents, ~~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 Subsidiary Guarantor~~, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this ~~Indenture, the Security Documents~~ Agreement or the ~~Intercreditor Agreements~~ other Note Documents or otherwise exist against the Collateral Agent. (b) In furtherance of the foregoing, each Holder hereby appoints and authorizes the Collateral Agent to act as the agent of such Holder for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by the Grantors to secure any of the obligations owing under this Agreement or the other Note Documents, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Collateral Agent shall be entitled to the benefits of this Section 10.3. (c) The Collateral Agent may execute any of its duties under this Agreement and the other Note 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 co-agents, collateral subagents or attorneys-in-fact (each, a "Subagent") with respect to all or any part of the Collateral and each Subagent shall be entitled to the benefits of all provisions of this Section 10.3 as though such Subagent was the Collateral Agent; provided, that no such Subagent shall be authorized to take any action with respect to any Collateral unless and except to the extent expressly authorized in writing by the Collateral Agent. Should any instrument in writing from the Issuer or any Subsidiary be required by any Subagent so appointed by the Collateral Agent to more fully or certainly vest in and confirm to such Subagent such rights, powers, privileges and duties, the Issuer 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. (d) 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, agents, attorneys-in-fact or affiliates be (i) 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 Note Document (except to the extent 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 (ii) responsible in any manner to any holder of the Notes for any recitals, statements, representations or warranties made by the Issuer or any Subsidiary or any officer thereof contained in this Agreement or any other Note 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 Note Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Note Document or for any failure of the Issuer or any Subsidiary a party thereto to perform its obligations hereunder or thereunder. The Collateral Agent shall not be under any obligation to any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Note Document, or to inspect the properties, books or records of the Issuer or any Subsidiary. The Collateral Agent shall not have any duties or obligations except those expressly set forth herein and in the other Note Documents. Without limiting the generality of the ~~foregoing~~ foregoing, (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 (ii) the Collateral Agent shall not, except as expressly set forth herein and in the other Note 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 Collateral Agent or any of its Affiliates in any capacity. Without limiting the generality of clause (i) of the previous sentence, the use of the term “"agent” " herein and in ~~this Indenture~~ the other Note Documents with reference to ~~the~~ Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any ~~applicable law. Instead~~Applicable Law and 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~~. (B)~~ . The ~~Issuer~~ Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the ~~Subsidiary Guarantors hereby agrees~~ other Note Documents that the Collateral Agent is required to exercise as directed in writing by the Majority Holders; provided that the Collateral Agent shall ~~hold the Collateral on behalf of and for the benefit of all of the Holders, the Trustee and the Collateral Agent~~not be required to take any action that, in ~~each case pursuant to~~its opinion or the opinion of its counsel, ~~and in accordance with, the terms of the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders,~~ may expose the Collateral Agent ~~and the Trustee, and~~ to liability or that ~~the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders~~ is ~~subject~~ contrary to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder. The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any ~~such Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent~~ Note Document or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (C) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements. (D) The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder or under any Security Documents or Intercreditor Agreements to which it is a party, except for its own gross negligence or willful misconductApplicable Law. The Collateral Agent shall not be responsible for or have ~~no liability for~~ any ~~action taken~~duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Note 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 or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Note Document or any other agreement, instrument or document, or ~~errors~~ the creation, perfection or priority of any Lien purported to be created by the Note Documents, (v) the value or the sufficiency of any Collateral, (vi) the satisfaction of any condition set forth in ~~judgment made~~Article 5 or elsewhere herein, ~~in good faith by it~~ other than to confirm receipt of items expressly required to be delivered to the Collateral Agent, (vii) the financial condition or business affairs of the Issuer, any Guarantor or any other Person liable for the payment of any Obligations, or (viii) the use of the proceeds of the Notes. The Collateral Agent shall not be responsible for or have any duty to (i) inspect the properties, books or records of the Issuer or any Guarantor or any of ~~its officers~~their respective Affiliates, ~~employees~~ (ii) file any financing statements or ~~agents~~any continuation and/or amendment of any financing statements, in each case to perfect or continue the perfection of the Liens in the Collateral; or (iii) make any disclosures with respect to the foregoing or otherwise relating to the Issuer or any Guarantor unless ~~it shall have been grossly negligent in ascertaining the pertinent facts~~expressly required herein. (Ee) The Collateral Agent shall be entitled to ~~seek~~ 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. 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, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (including counsel to the Issuer), 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 request (i) instructions from the Majority Holders prior to taking any action or entering into any amendment, modification or supplement, making any determination, making any calculation, sending any notice, revoking any notice, making a selection, request, election or appointment (including failing to make a selection, request, election or appointment), exercising any voting rights or powers (including failing to exercise any voting rights or powers), exercising any rights or remedies (and all actions incidental or related thereto), releasing, subordinating and/or terminating any Lien, exercising any powers as the attorney-in-fact for the Issuer or any Guarantor, providing any consent, approval, instruction or direction (including failing to provide any consent, approval, instruction or direction) or making (or failing to make) any filing or recording in connection with this Agreement or any of the other Note Documents, and may refrain (and shall incur no liability from so refraining) from taking or omitting to take any act or making any such determination, calculation, selection request, exercising such voting rights or powers or providing such notice, approval or consent or entering into any amendments, modification or supplements until it receives such instruction (or calculation, as applicable) from the Majority Holders and (ii) such indemnity from the Holders, in each case, as it deems appropriate (and until such instructions and indemnity, as applicable, are received, the Collateral Agent shall act, or refrain from acting, as it deems advisable in its sole discretion) and the Collateral Agent shall not incur liability to any Holders, the Issuer or any Guarantor by reason of so refraining. The Collateral Agent shall be fully justified in acting or in failing or refusing to take any action under this ~~Indenture, the Security Documents~~ Agreement or ~~the Intercreditor Agreements~~ any other Note Document unless it shall first (a) receive such ~~advice or concurrence~~ written instruction of ~~the Trustee or~~ the Majority Holders as it ~~determines and~~deems appropriate and (b) if so determined by the Collateral Agent in its sole discretion, ~~if it so requests, it shall first~~ be indemnified to its satisfaction by the Holders against any and all liability and expense ~~which~~ that may be incurred by it by reason of taking or continuing to take any such action. ~~Except as otherwise provided in the Security Documents, the~~ The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this ~~Indenture,~~ Agreement and the ~~Security~~ other Note Documents ~~or the Intercreditor Agreements~~ in accordance with a ~~request, direction,~~ written instruction ~~or consent~~ of ~~the Trustee or~~ the Majority Holders (or, if so specified by this Agreement, all affected Holders), and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders~~. If~~ . (f) 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 request direction~~ has received written notice from a Holder or the ~~Majority Holders with respect~~ Issuer referring to ~~any action~~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 ~~be entitled~~ give notice thereof to ~~refrain from taking such action unless and until~~ the ~~Collateral Agent shall have received direction from the Majority~~ Holders~~, and the Collateral Agent shall not incur liability to any Person by reason of so refraining. (F)~~ . The Collateral Agent shall take such action with respect to such Default or Event of Default as ~~may~~ shall be ~~requested~~ reasonably directed by ~~the Trustee or~~ the Majority Holders in writing; provided, that unless and until the Collateral Agent shall have received such directions, the Collateral Agent may (~~subject~~ but shall not be obligated to) take such action, or refrain from taking such action, with respect to ~~this Section 11.01(F)), subject to~~ such Default or Event of Default as it shall deem advisable in the ~~terms~~ best interests of the ~~Security Documents~~Holders. (Gg) ~~Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements,~~ Each Holder expressly acknowledges that neither the Collateral Agent nor any of its ~~respective~~ officers, directors, ~~employees~~ employees, agents, attorneys-in-fact or ~~agents~~ affiliates have made any representations or ~~other Affiliates shall be liable for failure~~ warranties 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. (H) If at any time or times the Trustee shall receive (i) it and that no act 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 and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms~~ hereafter taken, including any review of the ~~Intercreditor Agreements~~affairs of the Issuer or any Affiliate of the Issuer, shall be deemed to constitute any representation or ~~(ii) payments from~~ warranty by the Collateral Agent ~~in excess~~ to any Holder. Each Holder 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 a Note represents to the Collateral Agent that it has, independently and without reliance upon the Collateral Agent or any other Holder, and based on such ~~proceeds~~ 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 Issuer and its affiliates and made its own decision to purchase the Notes hereunder and enter into this Agreement. Each holder of a Note also represents that it will, independently and without reliance upon the Collateral Agent or any 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 Note 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 Issuer and its Affiliates. Except for notices, reports and other documents expressly required to be ~~applied~~ furnished to the Holders by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders or to the Trustee, in the case of the Collateral Agent, to assure that the Collateral exists or is owned by the Issuer or any Subsidiary 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 of the Issuer’s or any Subsidiary Guarantor’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 value, genuineness, validity, ownership, 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 or the Intercreditor Agreements other than to exercise such rights, authorities and powers pursuant to the instructions of the Trustee or the Majority Holders or as otherwise provided in the Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall the Collateral Agent or the Trustee 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 Agreements (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. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income thereon. 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, including, without limitation, 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 be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. The Holders, through their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, 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 7.15 and the other provisions of this Indenture. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Collateral Agent, in such capacity. (O) 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 Collateral, the Collateral Agent shall not ~~be required~~ have any duty or responsibility to ~~commence~~ provide any ~~such action~~ Holder with any credit or ~~exercise any remedy or to inspect or conduct any studies of any property under~~ other information concerning the ~~Mortgages or take any such other action if the Collateral Agent has reasonably determined that the Collateral Agent may incur personal liability as a result of the presence at~~business, ~~or release on or from~~operations, ~~the Collateral or such~~ property, condition (financial or otherwise), prospects or creditworthiness of any hazardous substances. The Collateral Agent shall at any time be entitled to cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or any Affiliate thereof that may come into the Holders to be sufficient. (P) 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 possession 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 Agreements, 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 or any of its officers, directors, employees, agents, attorneys-in-fact or affiliates. (h) The Issuer agrees to pay or reimburse the ~~Trustee may hold or obtain indicia of ownership primarily to protect the security interest~~ Collateral Agent for all reasonable and documented out-of-pocket costs and expenses of the Collateral ~~Age~~Agent (promptly following a written demand therefor, together with backup documentation supporting such reimbursement request) incurred in connection with the preparation, negotiation, execution, delivery and administration of this Agreement and the other Note Documents and any amendment, waiver, consent, forbearance, modification or enforcement (whether through negotiations, legal proceedings or otherwise) of the provisions hereof and thereof (whether or not the transactions contemplated thereby are consummated), and the consummation and administration of the transactions contemplated hereby and thereby, including all reasonable and documented attorneys' fees, costs and expenses and, if necessary, a single local counsel in each relevant jurisdiction, and upon presentation of a summary statement, together with any supporting documentation reasonably requested by the Issuer, to pay or reimburse the Collateral Agent, promptly following a written demand therefor for all reasonable and documented out-of-pocket costs and expenses incurred in connection with the enforcement of any rights or remedi

Appears in 1 contract

Sources: Note Purchase Agreement (Bioceres Crop Solutions Corp.)

Collateral Agent. (Aa) The Issuer and each of the ~~Subsidiary Guarantors~~ Holders by acceptance of the Notes hereby ~~appoint U.S. Bank Trust Company~~designates and appoints the Collateral Agent as its agent under this Indenture, ~~National Association to act as~~ the Collateral ~~Agent~~Documents and each Intercreditor Agreement, and the Issuer and each ~~Holder,~~ of the Holders by ~~its~~ acceptance of ~~any~~ the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Collateral Documents and each Intercreditor Agreement, and to exercise such powers and perform such duties as are expressly delegated to the ~~Subsidiary Guarantees thereof~~Collateral Agent by the terms of this Indenture, ~~irrevocably~~ the Collateral Documents and each Intercreditor Agreement, and consents and agrees to ~~such appointment on its behalf~~the terms of each Intercreditor Agreement and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent ~~shall have~~ agrees to act as such on the ~~privileges~~express conditions contained in this Section 12.7. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, ~~powers~~ each Intercreditor Agreement and ~~immunities as~~ the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth ~~in this Indenture~~ herein and ~~the Security Documents~~therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the ~~Security~~ Collateral Documents ~~or the~~ and each Intercreditor ~~Agreements~~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 ~~Security~~ Collateral Documents and ~~the~~ each Intercreditor ~~Agreements~~ Agreement, 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, the Issuer~~ Holder or any ~~Subsidiary Guarantor~~Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the ~~Security~~ Collateral Documents ~~or the~~ and each Intercreditor ~~Agreements~~ Agreement, or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. (B) The Issuer and the Subsidiary Guarantors hereby agrees that the Collateral Agent shall 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, and in accordance with, the terms of the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder. The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (C) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements. (Db) The Collateral Agent ~~shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor~~ may perform any of its duties under this Indenture, the Collateral Documents, the Pari 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 the respective officers, directors, ~~employees or agents~~ employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “ Related Person”), and shall be ~~responsible for any act or failure~~ entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act ~~hereunder~~ upon, and shall be fully protected in taking action in reliance upon any advice or ~~under any Security Documents or Intercreditor Agreements to which it is a party, except for its own gross negligence or willful misconduct~~opinion given by legal counsel. The Collateral Agent shall ~~have no liability~~ not be responsible for the negligence or misconduct of any ~~action taken~~receiver, agent, employee, attorney-in-fact or ~~errors in judgment made,~~ Related Person that it selects as long as such selection was made in good faith ~~by it or any of its officers, employees or agents, unless it shall have been grossly negligent in ascertaining the pertinent facts~~and with due care. (Ec) The Collateral Agent shall be entitled to ~~seek~~ rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the ~~Security Documents~~ Collateral Documents, the Pari Passu Intercreditor Agreement or ~~the~~ any Acceptable Intercreditor ~~Agreements~~ Agreement unless it shall first receive such advice or concurrence of the Trustee or the ~~Majority~~ 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. ~~Except as otherwise provided in the Security Documents, the~~ The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the ~~Security Documents~~ Collateral Document, the Pari Passu Intercreditor Agreement or ~~the~~ any Acceptable Intercreditor ~~Agreements~~ Agreement in accordance with a request, direction, instruction or consent of the Trustee or the ~~Majority~~ 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~~. If the~~ . (d) [Reserved] (e) The Collateral Agent shall ~~request direction from~~ not be deemed to have knowledge or notice of the ~~Majority Holders with respect to~~ occurrence of any ~~action~~Default or Event of Default, ~~the Collateral Agent shall be entitled to refrain from taking such action~~ unless ~~and until~~ a Trust Officer of the Collateral Agent shall have received ~~direction~~ written notice from the ~~Majority Holders~~Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and ~~the Collateral Agent shall not incur liability to any Person by reason~~ stating that such notice is a “notice of ~~so refraining~~default. ~~(F)~~ ” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article VI or the ~~Majority~~ Holders of a majority in aggregate principal amount of the Notes (subject to this Section ~~11.01(F~~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 ~~terms~~ consent of the ~~Security Documents.~~ Issuer (~~G) Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements, neither the Collateral Agent nor any~~ which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of ~~its respective officers, directors, employees or agents or other Affiliates shall be liable for failure~~ Default). If no successor collateral agent is appointed and consented 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. (H) 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 Note Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the ~~Trustee from the Collateral Agent~~ Issuer pursuant to the ~~terms~~ preceding sentence within thirty (30) days after the intended effective date of ~~this Indenture and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements, or~~ resignation (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 such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders or to the Trustee, stated in the ~~case~~ notice of the Collateral Agent, to assure that the Collateral exists or is owned by the Issuer or any Subsidiary 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 of the Issuer’s or any Subsidiary Guarantor’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 value, genuineness, validity, ownership, 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 or the Intercreditor Agreements other than to exercise such rights, authorities and powers pursuant to the instructions of the Trustee or the Majority Holders or as otherwise provided in the Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall the Collateral Agent or the Trustee 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 Agreements (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. (Jresignation) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income thereon. 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, including, without limitation, 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 be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. The Holders, through their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to ~~conclusively rely on~~ petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such ~~Security Document Order. (M) The~~ successor collateral agent shall succeed to all the rights, powers and duties of the retiring Collateral ~~Agent is authorized to receive any funds for the benefit of itself~~Agent, ~~the Trustee~~ and the ~~Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements~~term “Collateral Agent” shall mean such successor collateral agent, ~~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 7.15~~ retiring Collateral Agent’s appointment, powers and ~~the other provisions of this Indenture. (N) In acting under this Indenture or any other Note Document,~~ duties as the Collateral Agent shall ~~have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to~~ be ~~compensated, reimbursed and indemnified under Section 10.06)~~terminated. ~~For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to~~ 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, ~~including, without limitation, its right to be indemnified prior to taking action, shall survive~~ the ~~satisfaction, discharge or termination~~ provisions of this ~~Indenture or~~ Section 12.7 (and Section 7.7 hereof) shall continue to inure to its ~~earlier termination, resignation or removal of~~ benefit and the Collateral Agent, in such capacity. (O) 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 Collateral, the retiring Collateral Agent shall not by reason of such resignation be ~~required~~ deemed to ~~commence~~ be released from liability as to any ~~such action~~ actions taken or ~~exercise any remedy or~~ omitted to ~~inspect or conduct any studies of any property under the Mortgages or take any such other action if~~ be taken by it while it was the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (P) 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 Agreements, 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 or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Age~~.

Appears in 1 contract

Sources: Indenture (MICROSTRATEGY Inc)

Collateral Agent. (Aa) ~~The Issuer~~ Each Lender hereby irrevocably appoints the DPDF Lender (together with any successor collateral agent appointed by DPDF Lender or any successor collateral agent that was appointed by the Required Lenders), as Collateral Agent hereunder and under the ~~Subsidiary Guarantors hereby appoint U.S. Bank Trust Company, National Association~~ other Transaction Documents and authorizes Collateral Agent to (i) act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral ~~Agent~~(as defined in the Guaranty and Security Agreement) granted by any of the Credit Parties to secure any of the Obligations, (ii) execute and ~~each Holder, by its acceptance of any Notes~~ deliver the Transaction Documents to which it is a party and ~~the Subsidiary Guarantees thereof, irrevocably consents and agrees to such appointment~~ accept delivery thereof on its ~~behalf. The Collateral Agent shall have the privileges~~behalf from any Credit Party, (iii) take such other actions on its behalf and to exercise all rights, powers and ~~immunities~~ remedies and perform the duties as ~~set forth~~ are expressly delegated to Collateral Agent under the Transaction Documents, including without limitation, file any financing statements in ~~this Indenture~~ a representative capacity, and ~~the Security Documents~~(iv) exercise such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this ~~Indenture~~Agreement or in any other Transaction Document, ~~the Security Documents or the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the~~ Collateral Agent shall not have any ~~duties~~ duty or ~~responsibilities,~~ responsibility except those expressly set forth herein ~~and in the Security Documents and the Intercreditor Agreements to which the Collateral Agent is a party,~~ or therein; nor shall ~~the~~ Collateral Agent have or be deemed to have any ~~trust or other~~ fiduciary relationship with ~~the Trustee,~~ any ~~Holder, the Issuer~~ Lender or ~~any Subsidiary Guarantor~~participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this ~~Indenture, the Security Documents~~ Agreement or ~~the Intercreditor Agreements~~ any other Transaction Document or otherwise exist against ~~the~~ Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “collateral agent” or “agent” herein and in ~~this Indenture~~ other Transaction 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. 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 ~~Issuer and the Subsidiary Guarantors hereby agrees that the Collateral Agent shall hold the Collateral on behalf~~ provisions of ~~and~~ this Section 6.17 are solely for the benefit of all of the Holders, the Trustee and the Collateral Agent, in each case pursuant to, and in accordance with, the terms of the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Collateral Agent and the ~~Trustee,~~ Lenders and ~~that~~ none of the ~~Lien~~ Borrower or the other Credit Parties shall have any rights as a third party beneficiary of any of the provisions of this ~~Indenture and the Security Documents in~~ Section 6.17, except with respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder. The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the ~~Collateral Agent or otherwise deal~~ Borrower’s consultation rights in connection with such Collateral in accordance with the Collateral Agent’s instructions. (C) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of ~~the~~ a successor Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in ~~the Security Documents~~ Section 6.17(h) hereof. In performing its functions and duties under this Agreement and the ~~Intercreditor Agreements~~other Transaction Documents, Collateral Agent shall act solely as collateral agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Credit Party. Collateral Agent shall have the same rights and powers under the Transaction Documents as any other Lender and may exercise or refrain from exercising the same as though it were not Collateral Agent, and Collateral Agent and its Affiliates may lend money to, invest in and generally engage in any kind of business with each Credit Party, Affiliate of any Credit Party as if it were not Collateral Agent hereunder. (Db) ~~The~~ Collateral Agent may execute any of its duties under this Agreement or any other Transaction Document by or through agents, subagents, 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 and any Person shall benefit from this Section 6.17. Collateral Agent shall not be ~~accountable only~~ responsible for ~~amounts~~ the negligence or misconduct of any agent, subagent or attorney in fact that it ~~actually receives~~ selects in the absence of gross negligence or willful misconduct as determined by a ~~result~~ final, non-appealable judgment of ~~the exercise~~ a court of ~~such powers, and neither the~~ competent jurisdiction. (c) Neither Collateral Agent nor any of its directors, officers, ~~directors~~employees, ~~employees~~ attorneys, advisors, representatives or agents shall (i) be ~~responsible~~ liable to any Lender for any ~~act~~ action taken or ~~failure~~ omitted to ~~act hereunder~~ be taken by any of them under or ~~under~~ in connection with this Agreement or any ~~Security Documents~~ other Transaction Document or ~~Intercreditor Agreements~~ the transactions contemplated hereby or thereby (except to ~~which it is a party, except for~~ the extent resulting from its own gross negligence or willful ~~misconduct~~misconduct in connection with its duties expressly set forth herein as determined by a final, non-appealable judgment of a court of competent jurisdiction), or (ii) be responsible in any manner to any Lender or participant for any recital, statement, representation or warranty made by any Credit Party or Affiliate of any Credit Party, or any officer thereof, contained in this Agreement or in any other Transaction Document, or in any certificate, report, statement or other document referred to or provided for in, or received by Collateral Agent under or in connection with, this Agreement or any other Transaction Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Transaction Document (or the creation, perfection or priority of any Lien or security interest therein), or for any failure of any Credit Party or any other party to any Transaction Document to perform its obligations (including the Obligations) hereunder or thereunder. ~~The~~ Collateral Agent shall ~~have no liability for~~ not be under any ~~action taken~~obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or ~~errors in judgment made~~conditions of, ~~in good faith by it~~ this Agreement or any other Transaction Document, or to inspect the properties, books or records of ~~its officers, employees~~ any Credit Party or ~~agents, unless it shall have been grossly negligent in ascertaining the pertinent facts~~any Credit Party’s Affiliates. (Ed) ~~The~~ Collateral Agent shall be entitled to ~~seek~~ rely, and shall be fully protected in relying, upon any communication believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to any Credit Party), independent accountants and other experts selected by Collateral Agent. Collateral Agent shall be fully justified in failing or refusing to take any action under ~~this Indenture, the Security Documents or the Intercreditor Agreements~~ any Transaction Document unless it shall first receive such advice or concurrence of the ~~Trustee or the Majority Holders~~ Required Lenders as it ~~determines~~ deems appropriate and, if it so requests, ~~it shall first be indemnified~~ confirmation from the Lenders of their obligation to ~~its satisfaction by the Holders~~ indemnify Collateral Agent against any and all ~~liability~~ liabilities and ~~expense which~~ expenses (including any fees and expenses of counsel to Collateral Agent) that may be incurred by it by reason of taking or continuing to take any such action. ~~Except as otherwise provided in the Security Documents, the~~ Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under ~~this Indenture, the Security Documents or the Intercreditor Agreements~~ any Transaction Document in accordance with a ~~request, direction, instruction~~ request or consent of the ~~Trustee or the Majority Holders~~ Required Lenders and such request and any action taken or failure to act pursuant thereto shall be binding upon ~~all of the Holders. If the~~ each Lender. (e) Collateral Agent shall ~~request direction from~~ not be deemed to have knowledge or notice of the ~~Majority Holders with respect to~~ occurrence of any ~~action~~Event of Default or Default, ~~the Collateral Agent shall be entitled to refrain from taking such action~~ unless ~~and until the~~ Collateral Agent shall have received ~~direction~~ written notice from ~~the Majority Holders,~~ a Lender or any Credit Party referring to this Agreement and the ~~Collateral Agent shall not incur liability to any Person by reason~~ other Transaction Documents, describing such Event of ~~so refraining~~Default or Default and stating that such notice is a “notice of default. ~~(F) The~~ ” Collateral Agent shall take such action with respect to such ~~Default or~~ Event of Default or Default as the Required Lenders may ~~be requested by the Trustee~~ direct; provided that, unless and until Collateral Agent has received any such request, Collateral Agent shall not take any such action, or ~~the Majority Holders (subject~~ refrain from taking any such action, with respect to ~~this Section 11.01(F)), subject to the terms~~ such Event of ~~the Security Documents~~Default or Default. (Gf) Each Lender acknowledges that Collateral Agent has not made any representation or warranty to it, and that no act by Collateral Agent hereafter taken, including any consent and acceptance of any assignment or review of the affairs of the Credit Parties or any of their Subsidiaries, shall be deemed to constitute any representation or warranty by Collateral Agent to any Lender as to any matter, including whether Collateral Agent has disclosed material information in its possession. Each Lender represents to Collateral Agent that it has, independently and without reliance upon Collateral Agent and based on such documents and information as it has deemed appropriate, made its own appraisal of, and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of Borrower and the other Credit Parties, and made its own decision to enter into this Agreement and the other Transaction Documents and to extend credit to Borrower hereunder and under the other Transaction Documents. Each Lender also represents that it will, independently and without reliance upon Collateral Agent 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 Transaction Documents, and to make such investigations as it deems necessary or appropriate to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of Borrower and the other Credit Parties. Except ~~as otherwise explicitly provided~~ for notices, reports and other documents expressly herein or in the Guaranty and Security ~~Documents or~~ Agreement required to be furnished to the ~~Intercreditor Agreements~~Lenders by Collateral Agent, ~~neither the~~ Collateral Agent ~~nor~~ shall not have any ~~of its respective officers, directors, employees~~ duty or ~~agents~~ responsibility to provide any Lender with any credit or other ~~Affiliates shall be liable for failure to demand~~information concerning the business, ~~collect~~ prospects, operations, property, financial or ~~realize upon any~~ other condition or creditworthiness of ~~the Collateral~~ Borrower 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~~ Credit Party that may come into the possession of Collateral ~~or any part thereof~~Agent. (Hg) ~~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~~ Other than with respect to the ~~Note Obligations~~ matters described in clause (i) below, which shall be governed by such clause, whether or not the transactions contemplated hereby are consummated, each Lender shall severally indemnify upon demand Collateral Agent and its directors, officers, partners, employees, attorneys, advisors, representatives and agents (to the extent not reimbursed by or on behalf of any Credit Party and without limiting the obligation of the Credit Parties to do so), according to its Pro Rata Share, from and against any and all losses, claims (including the reasonable attorneys’ fees incurred in defending against such claims), damages, liabilities, penalties or other expenses arising ~~under~~out of, or relating to, ~~this Indenture~~any of Collateral Agent’s duties, ~~except for any such proceeds~~ responsibilities or ~~payments received by the Trustee from the Collateral Agent~~ actions set forth in or that taken pursuant to the ~~terms~~ Transaction Documents; provided that no Lender shall be liable for any payment to any such Person of ~~this Indenture and~~ any portion of the foregoing to the extent ~~such proceeds~~ determined by a final, non-appealable judgment by a court of competent jurisdiction to have resulted from the applicable Person’s gross negligence or ~~payments are permitted to be paid to~~ willful misconduct. No action taken (or in refraining from having taken action) in accordance with the ~~Trustee or the Holders under the terms~~ directions of the ~~Intercreditor Agreements~~Required Lenders shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 6.17(g). Without limitation of the foregoing, each Lender shall reimburse Collateral Agent upon demand for such Lender’s ratable share of any costs or ~~(ii) payments from the~~ out of pocket expenses incurred by Collateral Agent in ~~excess~~ connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Transaction Document or any document contemplated by or referred to herein or therein, to the extent that Collateral Agent is not reimbursed for such fees, costs and expenses by or on behalf of the ~~amount required to be paid~~ Credit Parties. The undertaking in this Section 6.17(g) shall survive repayment of the Loans and the other Obligations, any foreclosure under, or modification, release or discharge of, any or all of the Transaction Documents, termination of this Agreement or the other Transaction Documents and the resignation or replacement of Collateral Agent. (h) Collateral Agent may resign as Collateral Agent upon thirty (30) days’ notice to the ~~Trustee pursuant~~ Lenders and Borrower, and the Required Lenders have the right, at their sole election, to ~~Article 7,~~ remove the ~~Trustee shall promptly turn~~ Person serving as Collateral Agent upon ten (10) days’ notice to Collateral Agent (or immediately upon any material breach of Collateral Agent of its obligations under the ~~same over to~~ Transaction Documents). If Collateral Agent resigns under this Agreement or the Required Lenders remove the Person serving as Collateral Agent, the Required Lenders (in ~~kind,~~ consultation with the Borrower) shall appoint from among the Lenders a successor Collateral Agent for such successor Collateral Agent and ~~with such endorsements as may be required to negotiate~~ the ~~same~~ Lenders. If no successor Collateral Agent is appointed prior to the effective date of the resignation or removal of Collateral Agent, Collateral Agent ~~such proceeds to be applied by~~ may appoint, after consulting with the Lenders and the Borrower, a successor Collateral Agent ~~pursuant to~~ from among the ~~terms~~ Lenders. Upon the acceptance of ~~this Indenture~~its appointment as successor Collateral Agent hereunder, ~~the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the~~ such successor Collateral Agent shall ~~have any obligation whatsoever~~ succeed to ~~any~~ all the rights, powers and duties of the ~~Holders~~ retiring or ~~to the Trustee, in the case of the~~ removed Collateral Agent, ~~to assure that~~ and the term “Collateral ~~exists~~ Agent” shall mean such successor Collateral Agent, and the retiring or ~~is owned by the Issuer or any Subsidiary Guarantor or is cared for, protected, or insured or has been encumbered, or that the~~ removed Collateral Agent’s ~~Liens have been properly or sufficiently or lawfully created~~appointment, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Subsidiary Guarantor’s property constituting Collateral intended to be subject to the Lien powers and ~~security interest of the Security Documents has been properly and completely listed or delivered,~~ duties as the case may be, or the value, genuineness, validity, ownership, 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 or the Intercreditor Agreements other than to exercise such rights, authorities and powers pursuant to the instructions of the Trustee or the Majority Holders or as otherwise provided in the Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall the Collateral Agent or the Trustee 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 Agreements (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. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income thereon. The Collateral Agent shall be ~~deemed~~ immediately and automatically terminated at such time. After any retiring Collateral Agent’s resignation or removal hereunder as Collateral Agent, the provisions of this Section 6.17 shall inure to ~~have exercised reasonable care in the custody of Collateral~~ its benefit (in its ~~possession if~~ capacity as Collateral Agent) as to any actions taken or omitted to be taken by it while it was Collateral Agent under this Agreement and the other Transaction Documents. If no successor 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, including, without limitation, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected Agent has accepted appointment as Collateral Agent by the date that is thirty (30) days following a retiring Collateral ~~Agent in good faith. The Collateral Agent shall be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost~~ Agent’s notice of resignation (or ~~damages in transmit. (K) Upon~~ at the ~~receipt by the Collateral Agent~~ time of removal of a ~~written request of the Issuer signed by an Officer (a “Security Document Order”~~Person as Collateral Agent), the retiring Collateral Agent’s resignation or removal shall nevertheless thereupon become effective, and the Required Lenders shall perform all of the duties of 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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into hereunder until such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. The Holders, through their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedenttime, if any, ~~under this Indenture and~~ as the ~~Note Documents to such execution and delivery have been complied with and (iii) instruct the~~ Required Lenders appoint a successor Collateral Agent ~~to execute and enter into such Intercreditor Agreement;~~ as provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Orderfor above. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, 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 7.15 and the other provisions of this Indenture. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Collateral Agent, in such capacity. (O) 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 Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (P) 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 Agreements, 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 or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Age

Appears in 1 contract

Sources: Exchange Agreement and Amendment to Facility Agreement (Kempharm, Inc)

Collateral Agent. ~~(A)~~ The ~~Issuer~~ Trustee and each of the Holders by acceptance of the Securities hereby authorize the appointment of the Collateral Agent as the Trustee’s and the ~~Subsidiary Guarantors hereby appoint U.S. Bank Trust Company, National Association~~ Holders’ Collateral Agent under the Security Documents and in its capacity as mortgagee and security trustee pursuant to ~~act as~~ the Collateral ~~Agent~~Rig Mortgages, and the Trustee and each ~~Holder,~~ of the Holders by ~~its~~ acceptance of ~~any Notes and~~ the ~~Subsidiary Guarantees thereof,~~ Securities hereby irrevocably ~~consents and agrees to such appointment on its behalf. The~~ authorize the Collateral Agent ~~shall have~~ to enter into the ~~privileges,~~ Security Documents and to take such action on their behalf under the provisions of the Security Documents and to exercise such powers and ~~immunities~~ perform such duties as ~~set forth in~~ 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 provision to the contrary contained elsewhere in this ~~Indenture,~~ Indenture and the Security ~~Documents or the Intercreditor Agreements~~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 Security Documents ~~and the Intercreditor Agreements~~ to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or ~~other~~ fiduciary relationship with the Trustee, any Holder, the ~~Issuer~~ Company, any Collateral Grantor or any ~~Subsidiary~~ Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this ~~Indenture,~~ Indenture and the Security Documents ~~or the Intercreditor Agreements~~ or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties~~. (B)~~ . The ~~Issuer~~ Trustee is authorized and directed by the Holders and the ~~Subsidiary Guarantors hereby agrees that~~ Holders by acquiring the Securities are deemed to have authorized the Trustee, as applicable, to cause the Collateral Agent ~~shall hold the Collateral on behalf of~~ to enter into and ~~for the benefit of all of the Holders, the Trustee and the Collateral Agent, in each case pursuant to, and in accordance with, the terms of~~ perform its obligations under the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunderDocuments. The Collateral Agent is ~~each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only~~ authorized and directed by ~~possession. Should~~ the Trustee ~~obtain possession of any such Collateral,~~ and the ~~Trustee shall notify~~ Holders and the ~~Collateral Agent thereof and promptly shall deliver such Collateral~~ Holders by acquiring the Securities are deemed to ~~the Collateral Agent or otherwise deal with such Collateral in accordance with~~ have authorized the Collateral Agent~~’s instructions. (C) Each Holder~~, ~~by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees~~ to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewithto which it is a party, (ii) ~~make~~ bind the ~~representations of the Holders set forth in the Security Documents~~ Trustee and ~~the Intercreditor Agreements, and (iii) bind~~ the Holders on the terms as set forth in ~~the~~ 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 ~~Intercreditor Agreements.~~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 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 security created or evidenced or expressed to be 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, as fiduciary (treuhänderisch) in its own name but for the 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 (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 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 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) ~~The Collateral Agent shall be accountable only for amounts that it actually receives~~ to exercise as ~~a result of the exercise of~~ its direct representative (direkter Stellvertreter) such ~~powers, and neither~~ other rights granted to the Collateral Agent ~~nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder or~~ under ~~any~~ this Indenture and under the relevant Swiss Security ~~Documents or Intercreditor Agreements to which it is a party, except for its own gross negligence or willful misconduct~~Document. The Collateral Agent shall not be deemed to have ~~no liability for~~ knowledge or notice of the occurrence of any ~~action taken,~~ Default or ~~errors in judgment made, in good faith by it or any~~ Event of ~~its officers, employees or agents~~Default, unless it shall have been grossly negligent in ascertaining the pertinent facts. (E) The Collateral Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Majority Holders 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. Except as otherwise provided in the Security Documents, the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent of the Trustee or the Majority Holders and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders. If the Collateral Agent shall request direction from the Majority Holders with respect to any action, the Collateral Agent shall be entitled to refrain from taking such action unless and until the Collateral Agent shall have received ~~direction~~ written notice from the ~~Majority Holders, and~~ Trustee or unless a written notice of any event which is in fact such a Default is received by the Collateral Agent ~~shall not incur liability to any Person by reason of so refraining. (F)~~ at the address specified in Section 14.01, and such notice references the Securities and this Indenture. The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the ~~Majority~~ Holders of a majority in aggregate principal amount of the Securities (subject to this Section ~~11.01(F~~12.05)~~), subject~~ . The Collateral Agent shall have no obligation and makes no representation whatsoever to the ~~terms~~ Trustee or any of the Holders as to the existence, genuineness, value or protection of the Collateral or the sufficiency of any Security Documents~~. (G) Except as otherwise explicitly provided herein~~ , or ~~in the Security Documents or the Intercreditor Agreements, neither~~ that the Collateral ~~Agent nor any of its respective officers, directors, employees or agents or other Affiliates shall be liable for failure to demand, collect or realize upon~~ is owned by 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. (H) 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 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 and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements, 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 such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders or to the Trustee, in the case of the Collateral Agent, to assure that the Collateral exists or is owned by the Issuer or any Subsidiary Guarantor Grantors or is cared for, ~~protected,~~ protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the ~~Issuer’s or any Subsidiary Guarantor~~Collateral 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 ~~value,~~ genuineness, validity~~, ownership~~, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, ~~disclosure,~~ disclosure or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this ~~Indenture~~Indenture or any other Security Documents, it being understood and agreed that in respect of the Collateral, or any ~~Security Document~~ act, omission, or event related thereto, the ~~Intercreditor Agreements~~ Collateral Agent shall have no other ~~than~~ duty or liability whatsoever to ~~exercise such rights, authorities and powers pursuant to the instructions of~~ the Trustee or any Holder as to any of the ~~Majority Holders~~ foregoing. The grant of permissive rights or ~~as otherwise provided in the Security Documents. Further~~ powers to ~~the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall~~ 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 ~~the Trustee~~ continuation statements, to record any documents or instruments in any public office at any time or be responsible ~~for,~~ for perfection or ~~have any duty or obligation with respect to,~~ maintaining the ~~recording, filing, registering, perfection, protection or maintenance~~ perfection of the security interests ~~or Liens intended~~ purported to be created by ~~this Indenture,~~ the Security Documents or and such responsibility shall be solely that of the ~~Intercreditor Agreements (including without limitation the filing or continuation~~ Company. Each of ~~any Uniform Commercial Code financing or continuation statements or similar documents or instruments), nor shall~~ the Collateral Agent ~~be responsible for~~and the Trustee, 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. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral each in its possession or control or any income thereon. 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 capacity as such, shall not be liable or responsible for the failure of the Company or any ~~loss or diminution in value of any of~~ Collateral Grantor to maintain insurance on the Collateral, ~~including, without limitation,~~ nor shall it be responsible for any loss due to the insufficiency of such insurance or by reason of the ~~act or omission~~ failure of any ~~carrier, forwarding agency~~ insurer to pay the full amount of any loss against which it may have insured to the Company or ~~other agent or bailee selected by the~~ any Collateral Agent in good faith. The Collateral Agent shall be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (a “Security Document Order”)Grantor, 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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. The Holders, through their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, 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 7.15 and the other provisions of this Indenture. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Collateral Agent, in such capacity. (O) 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 Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (P) 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 Agreements, 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 or ~~the Trustee may hold or obtain indicia~~ any other Person. The provisions of ~~ownership primarily~~ Article 7, mutatis mutandis, shall apply to ~~protect the security interest of~~ the Collateral ~~Age~~Agent.

Appears in 1 contract

Sources: Indenture (Transocean Ltd.)

Collateral Agent. (Aa) The ~~Issuer~~ Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Indenture and the ~~Subsidiary Guarantors hereby appoint U.S. Bank Trust Company, National Association to act as~~ Collateral ~~Agent,~~ Documents and the Trustee and each ~~Holder,~~ of the Holders by ~~its~~ acceptance of ~~any~~ the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture and the ~~Subsidiary Guarantees thereof~~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, ~~irrevocably consents and agrees to~~ together with such ~~appointment on its behalf~~powers as are reasonably incidental thereto. The Collateral Agent agrees to act as such on the express conditions contained in this Section 11.10. The provisions of this Section 11.10 are solely for the benefit of the Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the ~~privileges, powers and immunities~~ provisions contained herein other than as ~~set forth~~ expressly provided in this ~~Indenture and the Security Documents~~Section 11.10. Notwithstanding any provision to the contrary contained elsewhere in this ~~Indenture, the Security Documents or the Intercreditor Agreements, the duties of~~ Indenture and the Collateral ~~Agent shall be ministerial and administrative in nature~~Documents, ~~and~~ the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth ~~herein and in the Security Documents and the Intercreditor Agreements to which the Collateral Agent is a party~~herein, nor shall the Collateral Agent have or be deemed to have any ~~trust or other~~ fiduciary relationship with the Trustee, any Holder, the ~~Issuer~~ Company or any ~~Subsidiary~~ Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this ~~Indenture,~~ Indenture and the ~~Security~~ Collateral Documents ~~or the Intercreditor Agreements~~ or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties~~. (B) The Issuer and the Subsidiary Guarantors hereby agrees that~~ . Except as expressly otherwise provided in this Indenture, the Collateral Agent shall ~~hold~~ have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Collateral ~~on behalf~~ Agent is expressly entitled to take or assert under this Indenture and the Collateral Documents, including the exercise of remedies pursuant to Article VI, and ~~for the benefit of all of the Holders,~~ any action so taken or not taken shall be deemed consented to by the Trustee and the Collateral Agent, in each case pursuant to, and in accordance with, the terms of the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder. The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (C) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements. (Db) The Collateral Agent ~~shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor~~ may execute any of its ~~officers~~duties under this Indenture or the Collateral Documents by or through agents, ~~directors~~employees, ~~employees~~ attorneys-in-fact or ~~agents~~ through its Affiliates and shall be ~~responsible for any act~~ entitled to an Officers’ Certificate or ~~failure~~ an Opinion of Counsel or both concerning all matters pertaining to ~~act hereunder or under any Security Documents or Intercreditor Agreements to which it is a party, except for its own gross negligence or willful misconduct~~such duties. The Collateral Agent shall ~~have no liability~~ not be responsible for the negligence or misconduct of any ~~action taken~~agent, employee, attorney-in-fact or ~~errors in judgment made, in good faith by~~ Affiliate 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 ~~officers~~Affiliates shall (i) be liable for any action taken or omitted to be taken by 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 Collateral Documents or the transactions contemplated thereby (except for its own negligence or willful misconduct), ~~employees~~ or ~~agents~~(ii) be responsible in any manner to any of the Trustee or any Holder for any recital, ~~unless it~~ statement, representation, warranty, covenant or agreement made by the Company or Guarantor, or 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 under or in connection with, this Indenture or the 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 obligations hereunder or thereunder. None of the Collateral Agent or any of its Affiliates shall ~~have been grossly negligent in ascertaining~~ be under any obligation to the ~~pertinent facts~~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 or the Collateral Documents or to inspect the properties, books, or records of the Company, any Guarantor or their respective Affiliates. (Ed) The Collateral Agent shall be entitled to ~~seek~~ 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 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, the Security Documents~~ Indenture or the ~~Intercreditor Agreements~~ Collateral Documents unless it shall first receive such advice or concurrence of the Trustee ~~or the Majority Holders~~ as it ~~determines~~ 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. ~~Except as otherwise provided in the Security Documents, the~~ The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this ~~Indenture, the Security Documents~~ Indenture or the ~~Intercreditor Agreements~~ Collateral Documents in accordance with a ~~request, direction, instruction~~ request or consent of the Trustee ~~or the Majority Holders~~ and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders~~. If the~~ . (e) The Collateral Agent shall ~~request direction from~~ not be deemed to have knowledge or notice of the ~~Majority Holders with respect to~~ occurrence of any ~~action~~Default or Event of Default, ~~the Collateral Agent shall be entitled to refrain from taking such action~~ unless ~~and until~~ the Collateral Agent shall have received ~~direction~~ written notice from the ~~Majority Holders~~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 ~~Collateral Agent shall not incur liability to any Person by reason~~ terms of ~~so refraining. (F) The~~ the Intercreditor Agreement, 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 Majority Holders~~ in accordance with Article VI (subject to this Section ~~11.01(F~~11. 10)); provided, ~~subject~~ however, that unless and until the Collateral Agent has received any such request, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to ~~the terms~~ such Default or Event of ~~the Security Documents~~Default as it shall deem advisable. (Gf) ~~Except~~ The Collateral Agent and its respective Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Company, any Guarantor or their respective Affiliates as ~~otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements, neither~~ though it was not the Collateral Agent ~~nor any of its respective officers, directors, employees~~ hereunder and without notice to or ~~agents or other Affiliates shall be liable for failure to demand, collect or realize upon any~~ consent 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~~ Trustee. The Trustee and the ~~request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. (H) If at any time or times the Trustee shall receive (i) by payment~~Holders acknowledge that, 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 and to the extent~~ such ~~proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements~~activities, 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 such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the Holders or to the Trustee, in the case of the Collateral Agent, to assure that the Collateral exists or is owned by the Issuer or any Subsidiary 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 of the Issuer’s or any Subsidiary Guarantor’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 value, genuineness, validity, ownership, 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 or the Intercreditor Agreements other than to exercise such rights, authorities and powers pursuant to the instructions of the Trustee or the Majority Holders or as otherwise provided in the Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall the Collateral Agent or its respective Affiliates may receive information regarding the ~~Trustee~~ Company or any Guarantor or any of their Affiliates (including information that may be ~~responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance~~ subject to confidentiality obligations in favor of the ~~security interests~~ Company or ~~Liens intended to be created by this Indenture, the Security Documents~~ any Guarantor or the Intercreditor Agreements (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. (J~~their Affiliates) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income thereon. 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 and acknowledge 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, including, without limitation, 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 be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. The Holders, through their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, 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 7.15 and the other provisions of this Indenture. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Collateral Agent, in such capacity. (O) 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 Collateral, the Collateral Agent shall not be ~~required~~ under any obligation to ~~commence~~ provide such information to the Trustee or the Holders. Nothing herein shall impose or imply any ~~such action or exercise any remedy or to inspect or conduct any studies~~ obligation on the part of ~~any property under the Mortgages or take any such other action if~~ the Collateral Agent ~~has reasonably determined that~~ to advance funds. (g) The Collateral Agent may resign at any time upon thirty (30) days prior written notice to the Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral Agent 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (P) 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 Agreements, 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 resigns under this Indenture, the ~~Intercreditor Agreements~~ Trustee, subject to the consent of the Company (which shall 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 ~~Security Documents~~intended effective date of the resignation of the Collateral Agent (as stated in the notice of resignation), the Collateral Agent or may appoint, after consulting with the ~~Trustee may hold or obtain indicia of ownership primarily~~ Trustee, subject to ~~protect~~ the ~~security interest~~ consent of the ~~Collateral Age~~Company (which shall not be unreasonably withheld and which shall not be

Appears in 1 contract

Sources: Indenture (APW Supermarkets, Inc.)

Collateral Agent. (Aa) ~~The Issuer~~ Each Lender hereby irrevocably appoints, designates and authorizes Bank of America, N.A. as Collateral Agent under the Intercreditor Agreement and the ~~Subsidiary Guarantors hereby appoint U.S. Bank Trust Company~~Collateral Documents with such powers as are specifically granted to the Collateral Agent by the terms thereof, ~~National Association~~ together with such other powers as are reasonably incidental thereto, and expressly authorizes the Collateral Agent as its agent to execute, deliver and perform the Collateral Documents and the Intercreditor Agreement and to act as Collateral ~~Agent,~~ Agent under the Collateral Documents (subject to and ~~each Holder, by its acceptance of any Notes~~ in accordance with the Intercreditor Agreement) and the ~~Subsidiary Guarantees thereof~~Intercreditor Agreement and Bank of America, ~~irrevocably consents and~~ N.A. in its individual capacity, accepts such appointment as Collateral Agent thereunder by executing the Borrowers Pledge Agreement, which appointment is coupled with an interest. Each Lender hereby agrees to ~~such appointment on its behalf. The Collateral Agent shall have~~ be bound by provisions of the ~~privileges, powers and immunities as set forth in this Indenture and the Security Documents.~~ Intercreditor Agreement applicable to a "Lender" therein. (b) Notwithstanding any provision to the contrary contained elsewhere in this ~~Indenture, the Security Documents~~ Agreement or the ~~Intercreditor Agreements~~Collateral 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 this Section 11.01, the ~~Security~~ Collateral Documents and the Intercreditor ~~Agreements to which the Collateral Agent is a party~~Agreement, 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 Subsidiary Guarantor~~Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this ~~Indenture, the Security Documents or the Intercreditor Agreements~~ Agreement or otherwise exist against ~~the~~ Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “"agent” " in ~~this Indenture~~ the Collateral Documents with reference to ~~the~~ Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. (Bc) ~~The Issuer and the Subsidiary Guarantors hereby agrees that~~ Collateral Agent may execute any of its duties under the Collateral Agent shall 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, and in accordance with, the terms of the Security Documents and the Intercreditor ~~Agreements~~ Agreement by or through agents, employees or attorneys-in-fact and ~~that the Collateral as now or hereafter constituted~~ shall be ~~held~~ entitled to advice of counsel concerning all matters pertaining to such duties. Collateral Agent shall not be responsible for the ~~benefit~~ negligence or misconduct of ~~all the Holders, the~~ any agent or attorney-in-fact that it selects with reasonable care. (d) None of Collateral ~~Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject~~ Agent-Related Persons (defined below) shall (i) be liable for any action taken or omitted to ~~and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may~~ be taken ~~thereunder. The Collateral Agent is each Holder’s agent for the purpose~~ by any of ~~perfecting the Holders’ security interest~~ them under or in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance connection with the Collateral ~~Agent’s instructions. (C) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security~~ Documents ~~and~~ or the Intercreditor ~~Agreements~~ Agreement or the transactions contemplated thereby (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements. (D) The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder or under any Security Documents or Intercreditor Agreements to which it is a party, except for its own gross negligence or willful misconduct~~. The Collateral Agent shall have no liability~~ ), or (ii) be responsible in any manner to any of Lenders for any ~~action taken~~recital, statement, representation or warranty made by Borrowers or any Subsidiary or Affiliate of Borrowers, or ~~errors~~ any officer thereof, contained in judgment made, in good faith by it or any of its officers, employees or agents, unless it shall have been grossly negligent in ascertaining the pertinent facts. (E) The Collateral Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of the Trustee or the Majority Holders 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. Except as otherwise provided in the Security Documents, the Collateral Agent shall in all cases be fully protected in actingAgreement, or in ~~refraining from acting~~any certificate, report, statement or other document referred to or provided for in, or received by Collateral Agent under or in connection with, this ~~Indenture~~Agreement, ~~the Security Documents~~ or the ~~Intercreditor Agreements in accordance with a request~~validity, ~~direction~~effectiveness, ~~instruction~~ genuineness, enforceability or ~~consent~~ sufficiency of the Trustee or the Majority Holders and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders. If the Collateral Agent shall request direction from the Majority Holders with respect to any actionthis Agreement, the Collateral Agent shall be entitled to refrain from taking such action unless and until the Collateral Agent shall have received direction from the Majority Holders, and the Collateral Agent shall not incur liability to any Person by reason of so refraining. (F) 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 Majority Holders (subject to this Section 11.01(F)), subject to the terms of the Security Documents. (G) Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements, neither the Collateral Agent nor any of its respective officers, directors, employees or agents or other Affiliates shall be liable for failure to demand, collect or realize upon any of the Collateral or for any ~~delay in doing so~~ failure of Borrowers or any other party to any Loan Document to perform their obligations hereunder or thereunder. No Collateral Agent-Related Person shall be under any obligation to ~~sell or otherwise dispose of~~ any ~~Collateral upon the request of any other Person~~ Lender to ascertain or to ~~take any other action whatsoever with regard~~ inquire as to the ~~Collateral~~ observance or ~~any part thereof. (H) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds~~ performance 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 and to the extent such proceeds or payments are permitted to be paid to the Trustee or the Holders under the terms of the Intercreditor Agreements, 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 such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreements. (I) Neither the Trustee nor the Collateral Agent shall have any obligation whatsoever to any of the ~~Holders~~ agreements contained in, or conditions of, this Agreement, or to inspect the ~~Trustee~~Properties, books or records of any Borrower or any of Borrowers' Subsidiaries or Affiliates. "Collateral Agent-Related Persons" means Collateral Agent (including any successor agent), together with its Affiliates (including, in the case of ~~the~~ Collateral Agent, to assure that the Collateral exists or is owned by the Issuer or any Subsidiary 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 Banc of the Issuer’s or any Subsidiary Guarantor’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 value, genuineness, validity, ownership, 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, authoritiesAmerica Securities LLC), and ~~powers granted or available to~~ the ~~Collateral Agent pursuant to this Indenture~~officers, ~~any Security Document or the Intercreditor Agreements other than to exercise such rights~~directors, ~~authorities~~ employees, agents and powers pursuant to the instructions of the Trustee or the Majority Holders or as otherwise provided in the Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or in any Security Document or any Intercreditor Agreement, in no event shall the Collateral Agent or the Trustee 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 Agreements (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. (J) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income thereon. 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, including, without limitation, 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 be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (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 attorneys-in, this Section 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. The Holders, through their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to conclusively rely on such Security Document Order. (M) The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements, for turnover to the Trustee to make further distributions -fact of such ~~funds to itself, the Trustee~~ Persons and ~~the Holders in accordance with the provisions of Section 7.15 and the other provisions of this Indenture~~Affiliates. (N) In acting under this Indenture or any other Note Document, the Collateral Agent shall have all the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Collateral Agent, in such capacity. (O) 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 Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (P) 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 Agreements, 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 or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Age

Appears in 1 contract

Sources: Interim Credit Agreement (Apartment Investment & Management Co)

Collateral Agent. (Aa) ~~The Issuer and~~ Each Holder agrees that any action taken by the Subsidiary Guarantors hereby appoint U.S. Bank Trust Company, National Association to act as Collateral Agent, and each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to such appointment on its behalf. The Collateral Agent ~~shall have~~ in accordance with the ~~privileges, powers and immunities as set forth in~~ provisions of this Indenture and the Security Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this ~~Indenture,~~ Indenture and the Security ~~Documents or the Intercreditor Agreements~~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 Security ~~Documents and the Intercreditor Agreements~~ 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, the Issuer~~ Holder or any ~~Subsidiary Guarantor~~grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this ~~Indenture,~~ Indenture and the Security ~~Documents or the Intercreditor Agreements~~ Documents, or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. (B) The Issuer and the Subsidiary Guarantors hereby agrees that the Collateral Agent shall 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, and in accordance with, the terms of the Security Documents and the Intercreditor Agreements and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Collateral Agent and the Trustee, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Security Documents and the Intercreditor Agreements and actions that may be taken thereunder. The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in the Collateral which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions. (C) Each Holder, by its acceptance of any Notes and the Subsidiary Guarantees thereof, irrevocably consents and agrees to the terms of the Security Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure, exercises of remedies and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms, agrees to the appointment of the Collateral Agent and authorizes and directs the Collateral Agent (i) to enter into the Security Documents and the Intercreditor Agreements, whether executed on or after the Issue Date, and perform its obligations and exercise its rights, powers and discretions under the Security Documents and the Intercreditor Agreements in accordance therewith, (ii) make the representations of the Holders set forth in the Security Documents and the Intercreditor Agreements, and (iii) bind the Holders on the terms as set forth in the Security Documents and the Intercreditor Agreements. (Db) The Collateral Agent ~~shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor~~ may perform any of its duties under this Indenture or the Security Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, ~~employees or agents~~ employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be ~~responsible for any act or failure~~ entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act ~~hereunder~~ upon, and shall be fully protected in taking action in reliance upon any advice or ~~under any Security Documents or Intercreditor Agreements to which it is a party, except for its own~~ opinion given by legal counsel (absent gross negligence or willful ~~misconduct~~misconduct as determined in an non-appealable judgment by a court of competent jurisdiction). The Collateral Agent shall ~~have no liability~~ not be responsible for the negligence or misconduct of any ~~action taken~~receiver, agent, employee, attorney-in-fact or ~~errors in judgment made,~~ Related Person that it selects as long as such selection was made in good faith ~~by it or any of its officers, employees or agents, unless it shall have been grossly negligent in ascertaining the pertinent facts~~and with due care. (Ec) The Collateral Agent shall be entitled to ~~seek~~ 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 in good faith to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Company or any other grantor), independent accountants and other experts and advisors selected by the Collateral Agent (absent gross negligence or willful misconduct as determined in an non-appealable judgment by a court of competent jurisdiction). The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. Except as otherwise expressly provided herein, the Collateral Agent shall be fully justified in failing or refusing to take any action under this ~~Indenture,~~ Indenture or the Security Documents ~~or the Intercreditor Agreements~~ unless it shall first receive such advice or concurrence of the Trustee or the ~~Majority~~ Required Holders or Lynrock, as ~~it determines~~ applicable, 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. ~~Except as otherwise provided in the Security Documents, the~~ The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this ~~Indenture,~~ Indenture or the Security Documents ~~or the Intercreditor Agreements~~ in accordance with a request, direction, instruction or consent of the Trustee or the ~~Majority~~ Required Holders or Lynrock, as applicable, and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders~~. If the~~ . (d) The Collateral Agent shall ~~request direction from~~ not be deemed to have knowledge or notice of the ~~Majority Holders with respect to~~ occurrence of any ~~action~~Default or Event of Default, ~~the Collateral Agent shall be entitled to refrain from taking such action~~ unless ~~and until~~ a Responsible Officer of the Collateral Agent shall have received ~~direction~~ written notice from the ~~Majority Holders~~Trustee, a Holder or the Company referring to this Indenture, describing such Default or Event of Default and ~~the Collateral Agent shall not incur liability to any Person by reason~~ stating that such notice is a “notice of ~~so refraining~~default. ~~(F)~~ ” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the ~~Majority~~ Required Holders or Lynrock, as the case may be (subject to this Section ~~11.01(F~~13.07 and the Intercreditor Agreement)~~), subject to the terms of the Security Documents~~. (Ge) ~~Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements, neither the~~ The Collateral Agent nor any of its respective officers, directors, employees or agents or other Affiliates 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. may (Hi) If resign 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 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 and to the extent such proceeds or payments are permitted to be paid 30 days’ written notice to the Trustee or and the ~~Holders under the terms of the Intercreditor Agreements,~~ Company or (ii) ~~payments from~~ be removed at any time by 30 days’ written notice to the Trustee, the Collateral Agent ~~in excess of~~ and the ~~amount required~~ Company from the Required Holders, such resignation or removal to be ~~paid~~ effective upon the acceptance of a successor agent to ~~the Trustee pursuant to Article 7, the Trustee shall promptly turn the same over to the~~ its appointment as Collateral Agent~~, in kind, and with such endorsements as may be required to negotiate the same to~~ . If the Collateral Agent ~~such proceeds to be applied by the Collateral Agent pursuant to the terms of~~ resigns or is removed under this Indenture, the ~~Security Documents and~~ Required Holders, in consultation with the ~~Intercreditor Agreements. (I) Neither~~ Company, shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the ~~Trustee nor~~ intended effective date of the resignation or removal of the Collateral Agent ~~shall have any obligation whatsoever to any~~ (as stated in the notice of ~~the Holders~~ resignation or to removal), the Trustee, in at the ~~case~~ direction of the ~~Collateral Agent~~Required Holders, may appoint a successor collateral agent in consultation with the Company. If no successor collateral agent is appointed and consented to ~~assure that the Collateral exists or is owned~~ by the Issuer or any Subsidiary 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 of the Issuer’s or any Subsidiary Guarantor’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 value, genuineness, validity, ownership, 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 or the Intercreditor Agreements other than to exercise such rights, authorities and powers Company pursuant to the ~~instructions~~ preceding sentence within thirty (30) days after the intended effective date of ~~the Trustee or the Majority Holders or~~ resignation (as ~~otherwise provided~~ stated in the ~~Security Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture~~ notice of resignation or ~~in any Security Document or any Intercreditor Agreement~~removal, in no event shall the Collateral Agent or the Trustee 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 Agreements (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. (Jas applicable) The Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income thereon. 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, including, without limitation, 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 be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damages in transmit. (K) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by an Officer (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 11.01(K), (ii) instruct the Collateral Agent to execute and enter into such Security Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Security Document have been compiled with; provided that in no event shall the Collateral Agent be required to enter into a Security Document that it reasonably determines adversely affects the Collateral Agent. The Holders, through their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents. (L) Upon receipt by the Collateral Agent of 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 Intercreditor Agreement to be entered into after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is an Intercreditor Agreement referred to in this Section 11.01(L), (ii) certify that such Intercreditor Agreement complies with the terms of this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Collateral Agent to execute and enter into such Intercreditor Agreement; provided that in no event shall the Collateral Agent be required to enter into any intercreditor agreement if it reasonably determines that such document adversely affects the Collateral Agent. The Holders, by their acceptance of the Notes, authorize and direct the Collateral Agent to execute such intercreditor agreements and the Collateral Agent shall be entitled to ~~conclusively rely on~~ petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such ~~Security Document Order. (M) The~~ successor collateral agent shall succeed to all the rights, powers and duties of the retiring Collateral ~~Agent is authorized to receive any funds for the benefit of itself~~Agent, ~~the Trustee~~ and the ~~Holders distributed under the Security Documents or the Intercreditor Agreements and to the extent not prohibited under the Intercreditor Agreements~~term “Collateral Agent” shall mean such successor collateral agent, ~~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 7.15~~ retiring Collateral Agent’s appointment, powers and ~~the other provisions of this Indenture. (N) In acting under this Indenture or any other Note Document,~~ duties as the Collateral Agent shall ~~have all~~ be terminated. After the rights and protections provided hereunder and in the Note Documents as well as the rights and protections afforded to the Trustee (including its rights to be compensated, reimbursed and indemnified under Section 10.06). For the avoidance of doubtretiring Collateral Agent’s resignation hereunder, the rights, privileges, protections, immunities and benefits given to the Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the satisfaction, discharge or termination provisions of this ~~Indenture or~~ Section 13.07 (and Section 7.06 and 7.13 hereof) shall continue to inure to its ~~earlier termination, resignation or removal of~~ benefit and the Collateral Agent, in such capacity. (O) 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 Collateral, the retiring Collateral Agent shall not by reason of such resignation or removal be ~~required~~ deemed to ~~commence~~ be released from liability as to any ~~such action~~ actions taken or ~~exercise any remedy or~~ omitted to ~~inspect or conduct any studies of any property under the Mortgages or take any such other action if~~ be taken by it while it was the Collateral Agent has reasonably 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 if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient. (P) 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 Agreements, 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 or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Age~~.

Appears in 1 contract

Sources: Indenture (Liveperson Inc)

Common use of Collateral Agent Clause in Contracts