Notes Collateral Agent. (a) The Notes Collateral Agent is authorized and empowered to appoint one or more co-Notes Collateral Agents as it deems necessary or appropriate. (b) Subject to Section 7.01, neither the Trustee nor the Notes Collateral Agent nor any of any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the Notes Obligations, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens securing the Notes Obligations or the Security Documents or any delay in doing so. (c) The Notes Collateral Agent will be subject to such directions as may be given it by the Trustee from time to time (as required or permitted by this Indenture); provided that in the event of conflict between directions received pursuant to the Security Documents and the Intercreditor Agreement and directions received hereunder, the Notes Collateral Agent will be subject to directions received pursuant to the Security Documents and the Intercreditor Agreement. Except as directed by the Trustee as required or permitted by this Indenture and any other representatives pursuant to the Security Documents or the Intercreditor Agreement, the Notes Collateral Agent will not be obligated: (i) to act upon directions purported to be delivered to it by any other person; (ii) to foreclose upon or otherwise enforce any Lien securing the Notes Obligations; (iii) to take any other action whatsoever with regard to any or all of the Liens securing the Notes Obligations or the Security Documents. (d) The Notes Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens securing the Notes Obligations or the Security Documents. (e) In acting as Notes Collateral Agent or co-Notes Collateral Agent, the Notes Collateral Agent and each co-Notes Collateral Agent may rely upon and enforce each and all of the rights, protections, privileges, powers, immunities, indemnities and benefits of the Trustee under Article 7 hereof. (f) The Holders of Notes agree that the Notes Collateral Agent shall be entitled to the rights, privileges, protections, immunities, indemnities and benefits provided to the Notes Collateral Agent by this Indenture and the Security Documents. Furthermore, each Holder of a Note, by accepting such Note, consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Notes Collateral Agent to enter into and perform each of the Intercreditor Agreement and Security Documents in each of its capacities thereunder. (g) If the Issuer (i) incurs First Priority Lien Obligations not prohibited by this Indenture at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting First Priority Lien Obligations entitled to the benefit of the Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officer’s Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement) in favor of a designated agent or representative for the holders of the First Priority Lien Obligations so incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the Holders on the terms set forth therein and perform and observe its obligations thereunder. (h) At all times when the Trustee is not itself the Notes Collateral Agent, the Issuer will deliver to the Trustee copies of all Security Documents delivered to the Notes Collateral Agent and copies of all documents delivered to the Notes Collateral Agent pursuant to this Indenture and the Security Documents (i) Notwithstanding anything in this Indenture to the contrary and for the avoidance of doubt, the Notes Collateral Agent and the Trustee shall have no duty to act outside of the United States of America in respect of any Collateral. (j) No notes collateral agent hereunder shall be personally liable for any reason for any act or omission of any other notes collateral agent hereunder.
Appears in 1 contract
Notes Collateral Agent. (a) The Notes Collateral Agent is authorized and empowered shall act in accordance with the provisions of Article 10 of the Indenture, the provisions of which shall be deemed incorporated by reference herein as fully as if set forth in their entirety herein. Each Secured Party, by accepting the benefits of this Agreement, agrees to appoint one or more co-the provisions of Article 10 of the Indenture, including as the same applies to the actions of the Notes Collateral Agents as it deems necessary or appropriateAgent hereunder.
(b) Subject The Notes Collateral Agent shall have no obligation to Section 7.01, neither clean-up or otherwise prepare the Trustee nor Collateral for sale. The Notes Collateral Agent shall use reasonable care with respect to the Collateral in its possession or under its control. The Notes Collateral Agent shall not have any other duty as to any Collateral in its possession or control or in the possession or control of any agent or nominee of the Notes Collateral Agent nor other than to account for money received, or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. To the extent that applicable law imposes duties on the Notes Collateral Agent to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is commercially reasonable for the Notes Collateral Agent (i) to fail to incur expenses deemed significant by the Notes Collateral Agent to prepare Collateral for disposition or otherwise to transform raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iii) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (iv) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (v) to contact other Persons, whether or not in the same business as such Grantor, for expressions of interest in acquiring all or any portion of such Collateral, (vi) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (vii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (viii) to dispose of assets in wholesale rather than retail markets, (ix) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (x) to purchase insurance or credit enhancements to insure the Notes Collateral Agent against risks of loss, collection or disposition of Collateral or to provide to the Notes Collateral Agent a guaranteed return from the collection or disposition of Collateral, or (xi) to the extent deemed appropriate by the Notes Collateral Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Notes Collateral Agent in the collection or disposition of any of their respective officers, directors, employees, attorneys the Collateral. Each Grantor acknowledges that the purpose of this 7.17 is to provide non-exhaustive indications of what actions or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing omissions by the Notes ObligationsCollateral Agent would be commercially reasonable in the Notes Collateral Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Notes Collateral Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 7.17. Without limitation upon the foregoing, or for nothing contained in this Section 7.17 shall be construed to grant any defect or deficiency as rights to any such matters, Grantor or for to impose any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens securing duties on the Notes Obligations Collateral Agent that would not have been granted or imposed by this Agreement or by applicable law in the Security Documents or any delay in doing soabsence of this Section 7.17.
(c) The Notes Collateral Agent will be subject to such directions as may be given it by the Trustee from time to time (as required or permitted by this Indenture); provided that in the event of conflict between directions received pursuant to the Security Documents Grantors and the Intercreditor Agreement and directions received hereunder, the Notes Collateral Agent will recognize that setoffs, counterclaims, defenses and other claims may be subject asserted by obligors with respect to directions received pursuant certain of the Accounts, that certain of the Accounts may be or become uncollectible in whole or in part and that the expense and probability of success in litigating a disputed Account may exceed the amount that reasonably may be expected to be recovered with respect to an Account. In view of the Security Documents and the Intercreditor Agreement. Except as directed by the Trustee as required or permitted by this Indenture and any other representatives pursuant to the Security Documents or the Intercreditor Agreementforegoing, each Grantor agrees that the Notes Collateral Agent will not be obligated:
(i) may at any time and from time to act upon directions purported to be delivered to it by time, if an Event of Default has occurred and is continuing, compromise with the obligor on any other person;
(ii) to foreclose upon or otherwise enforce Account, accept in full payment of any Lien securing the Notes Obligations;
(iii) to take any other action whatsoever with regard to any or all of the Liens securing the Notes Obligations or the Security Documents.
(d) The Notes Collateral Agent will be accountable only for amounts that it actually receives Account such amount as a result of the enforcement of the Liens securing the Notes Obligations or the Security Documents.
(e) In acting as Notes Collateral Agent or co-Notes Collateral Agent, the Notes Collateral Agent in its sole discretion shall determine or abandon any Account, and each co-Notes Collateral Agent may rely upon and enforce each and all of the rights, protections, privileges, powers, immunities, indemnities and benefits of the Trustee under Article 7 hereof.
(f) The Holders of Notes agree that any such action by the Notes Collateral Agent shall be entitled to the rights, privileges, protections, immunities, indemnities and benefits provided to commercially reasonable so long as the Notes Collateral Agent by this Indenture and acts in good faith based on information known to it at the Security Documents. Furthermore, each Holder of a Note, by accepting time it takes any such Note, consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Notes Collateral Agent to enter into and perform each of the Intercreditor Agreement and Security Documents in each of its capacities thereunderaction.
(g) If the Issuer (i) incurs First Priority Lien Obligations not prohibited by this Indenture at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting First Priority Lien Obligations entitled to the benefit of the Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officer’s Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement) in favor of a designated agent or representative for the holders of the First Priority Lien Obligations so incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the Holders on the terms set forth therein and perform and observe its obligations thereunder.
(h) At all times when the Trustee is not itself the Notes Collateral Agent, the Issuer will deliver to the Trustee copies of all Security Documents delivered to the Notes Collateral Agent and copies of all documents delivered to the Notes Collateral Agent pursuant to this Indenture and the Security Documents
(i) Notwithstanding anything in this Indenture to the contrary and for the avoidance of doubt, the Notes Collateral Agent and the Trustee shall have no duty to act outside of the United States of America in respect of any Collateral.
(j) No notes collateral agent hereunder shall be personally liable for any reason for any act or omission of any other notes collateral agent hereunder.
Appears in 1 contract
Notes Collateral Agent. (a) By accepting a Note, each Holder will be deemed to have irrevocably appointed the Notes Collateral Agent to act as its agent under the Security Documents and the Intercreditor Agreements and to have irrevocably authorized and directed the Notes Collateral Agent to (i) perform the duties and exercise the rights, powers and discretions that are specifically given to it under the Security Documents, the Intercreditor Agreements or other documents to which it is a party, together with any other incidental rights, powers and discretions; and (ii) execute each document expressed to be executed by the Notes Collateral Agent on its behalf. Each of the Holders hereby exempts the Notes Collateral Agent from any restrictions on representing several persons and self-dealing under any applicable law to the extent legally possible for such Holder.
(b) The Notes Collateral Agent is authorized and empowered to appoint one or more subagents or co-Notes Collateral Agents collateral agents as it deems necessary or appropriate, including without limitation the Bank Collateral Agent.
(bc) Subject The Notes Collateral Agent shall have all the rights and protection provided in the Security Documents as well as the rights and protections afforded to Section 7.01it hereunder; provided, neither however, that the Trustee nor Issuers shall not reimburse any expense or indemnify against any loss, liability or expense incurred by the Notes Collateral Agent nor any through the Notes Collateral Agent’s own willful misconduct or gross negligence, as determined by a final order of a court of competent jurisdiction.
(d) None of the Trustee, the Notes Collateral Agent or any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, continuation of perfection, priority, sufficiency or protection of any Lien securing the Notes Obligations, or for any defect or deficiency as to any such matters, or for except to the extent any failure possessory collateral is delivered to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens securing the Notes Obligations or the Security Documents or any delay in doing soCollateral Agent for perfection purposes.
(ce) The Notes Collateral Agent will be subject to such directions as may be given it by the Trustee from time to time (as required or permitted by this Indenture); provided that in the event of conflict between directions received pursuant Subject to the Security Documents and the Intercreditor Agreement and directions received hereunderAgreements, the Notes Collateral Agent will be subject to directions received pursuant to the Security Documents and the Intercreditor Agreement. Except as directed by the Trustee as required or permitted by this Indenture and any other representatives pursuant to the Security Documents or the Intercreditor Agreement, Holders acknowledge that the Notes Collateral Agent will not be obligated:
(i1) to act upon directions purported to be delivered to it by any other personPerson;
(ii2) to foreclose upon or otherwise enforce any Lien securing the Notes Obligations;Notes; or
(iii3) to take any other action whatsoever with regard to any or all of the Liens securing the Notes Obligations Notes, the Security Documents or the Security DocumentsCollateral.
(d) The Notes Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens securing the Notes Obligations or the Security Documents.
(ef) In acting as Notes Collateral Agent or Agent, co-collateral agent or sub-collateral agent, the Notes Collateral Agent, the Notes Collateral Agent and each co-Notes Collateral Agent collateral agent and each sub-collateral agent may rely upon and enforce each and all of the rights, protections, privileges, powers, immunities, indemnities and benefits of the Trustee under Article 7 VII hereof.
(fg) The Holders of Notes agree that Neither the Trustee nor the Notes Collateral Agent shall be entitled have any duty to file any financing statements, continuation statements or amendments thereto or any other agreement or instrument to record or perfect or maintain the rights, privileges, protections, immunities, indemnities and benefits provided to perfection of the Notes Collateral Agent’s security interest in the Collateral.
(h) Upon the receipt by the Notes Collateral Agent by this Indenture and the Security Documents. Furthermore, each Holder of a Note, by accepting such Note, consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Notes Collateral Agent to enter into and perform each written request of the Intercreditor Agreement and Security Documents in Issuers signed by an Officer of each of its capacities thereunder.
(g) If the Issuer (i) incurs First Priority Lien Obligations not prohibited by this Indenture at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting First Priority Lien Obligations entitled to the benefit of the Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officer’s Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement) in favor of a designated agent or representative for the holders of the First Priority Lien Obligations so incurred“Security Document Order”), the Notes Collateral Agent shall (and is hereby authorized to execute and directed toenter into, and shall execute and enter into, without the further consent of any Holder or the Trustee, any Security Document or Intercreditor Agreement to be executed after the Issue Date. Such Security Document Order shall (i) enter into such intercreditor agreement, bind the Holders on the terms set forth therein and perform and observe its obligations thereunder.
(h) At all times when the Trustee state that it is not itself the Notes Collateral Agent, the Issuer will deliver to the Trustee copies of all Security Documents delivered to the Notes Collateral Agent and copies of all documents being delivered to the Notes Collateral Agent pursuant to, and is a Security Document Order referred to in, this Indenture Section 11.12(h), and the Security Documents
(iii) Notwithstanding anything in this Indenture to the contrary and for the avoidance of doubt, instruct the Notes Collateral Agent to execute and enter into such Security Document or Intercreditor Agreement. Any such execution of a Security Document or Intercreditor Agreement shall be at the Trustee shall have no duty to act outside direction and expense of the United States Issuers, upon delivery to the Notes Collateral Agent of America in respect an Officer’s Certificate stating that all conditions precedent to the execution and delivery of any Collateral.
(j) No notes collateral agent hereunder shall be personally liable for any reason for any act the Security Document or omission Intercreditor Agreement have been satisfied. The Holders, by their acceptance of any other notes collateral agent hereunder.the Notes, hereby authorize and direct the Notes Collateral Agent to execute such Security Documents and
Appears in 1 contract
Sources: Indenture (Primo Brands Corp)
Notes Collateral Agent. (a) The Trustee shall initially act as Notes Collateral Agent is and shall be authorized and empowered to appoint one or more co-Notes Collateral Agents as it deems necessary in its sole discretion. In the event the Trustee and the Notes Collateral Agent shall at any time not be the same Person, the Notes Collateral Agent shall take such actions under the Security Documents as are requested by the Trustee and as are not inconsistent with or appropriate.
(b) Subject contrary to Section 7.01the provisions of any Security Document. Except as otherwise explicitly provided herein or in the Security Documents, neither the Trustee nor the Notes Collateral Agent nor any of any of their its respective officers, directors, employees, attorneys employees or agents will shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the Notes Obligations, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose collect or realize upon or otherwise enforce any of the Liens securing the Notes Obligations Collateral or the Security Documents or for any delay in doing so.
(c) The Notes so or shall be under any obligation to sell or otherwise dispose of any Collateral Agent will be subject to such directions as may be given it by upon the Trustee from time to time (as required or permitted by this Indenture); provided that in the event request of conflict between directions received pursuant to the Security Documents and the Intercreditor Agreement and directions received hereunder, the Notes Collateral Agent will be subject to directions received pursuant to the Security Documents and the Intercreditor Agreement. Except as directed by the Trustee as required or permitted by this Indenture and any other representatives pursuant to the Security Documents Person or the Intercreditor Agreement, the Notes Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any other person;
(ii) to foreclose upon or otherwise enforce any Lien securing the Notes Obligations;
(iii) to take any other action whatsoever with regard to the Collateral or any or all of the Liens securing the Notes Obligations or the Security Documents.
(d) part thereof. The Notes Collateral Agent will shall be accountable only for amounts that it actually receives as a result of the enforcement exercise of the Liens securing such powers, and neither the Notes Obligations Collateral Agent nor any of its officers, directors, employees or the Security Documentsagents shall be responsible for any act or failure to act hereunder, except for its own willful misconduct, negligence or bad faith.
(eb) In acting The Trustee, as Notes Collateral Agent or co-Notes Collateral Agent, is authorized and directed to (i) enter into the Notes Collateral Agent Security Documents and each co-Notes Collateral Agent may rely upon the Intercreditor Agreement, (ii) bind the Holders on the terms as set forth in the Security Documents and enforce each the 79 Intercreditor Agreement and all of (iii) perform and observe its obligations under the rights, protections, privileges, powers, immunities, indemnities Security Documents and benefits of the Trustee under Article 7 hereofIntercreditor Agreement.
(f) The Holders of Notes agree that the Notes Collateral Agent shall be entitled to the rights, privileges, protections, immunities, indemnities and benefits provided to the Notes Collateral Agent by this Indenture and the Security Documents. Furthermore, each Holder of a Note, by accepting such Note, consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Notes Collateral Agent to enter into and perform each of the Intercreditor Agreement and Security Documents in each of its capacities thereunder.
(gc) If the Issuer Issuer, Holdings or any Guarantor (i) incurs First Priority Lien Obligations not prohibited by this Indenture at any time when no intercreditor agreement Intercreditor Agreement is in effect or at any time when Indebtedness constituting First Priority Lien Obligations entitled to the benefit of the any existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officer’s Certificate and Opinion of Counsel so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement) in favor of a designated agent or representative for the holders of the First Priority Lien Obligations so incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the Holders on the terms set forth therein and perform and observe its obligations thereunder.
(h) At all times when the Trustee is not itself the Notes Collateral Agent, the Issuer will deliver to the Trustee copies of all Security Documents delivered to the Notes Collateral Agent and copies of all documents delivered to the Notes Collateral Agent pursuant to this Indenture and the Security Documents
(i) Notwithstanding anything in this Indenture to the contrary and for the avoidance of doubt, the Notes Collateral Agent and the Trustee shall have no duty to act outside of the United States of America in respect of any Collateral.
(j) No notes collateral agent hereunder shall be personally liable for any reason for any act or omission of any other notes collateral agent hereunder.
Appears in 1 contract
Notes Collateral Agent. (a) The Notes Collateral Agent is authorized and empowered to appoint one or more co-Notes Collateral Agents as it deems necessary or appropriate.
(b) Subject to Section 7.01, neither the Trustee nor the Notes Collateral Agent nor any of any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the Notes Obligations, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens securing the Notes Obligations or the Security Documents or any delay in doing so.
(c) The Notes Collateral Agent will be subject to such directions as may be given it by the Trustee from time to time (as required or permitted by this Indenture); provided that in the event of conflict between directions received pursuant to the Security Documents and the Intercreditor Agreement Agreements and directions received hereunder, the Notes Collateral Agent will be subject to directions received pursuant to the Security Documents and the Intercreditor AgreementAgreements. Except as directed by the Trustee as required or permitted by this Indenture and any other representatives pursuant to the Security Documents or the Intercreditor AgreementAgreements, the Notes Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any other person;
(ii) to foreclose upon or otherwise enforce any Lien securing the Notes Obligations;
(iii) to take any other action whatsoever with regard to any or all of the Liens securing the Notes Obligations or the Security Documents.
(d) The Notes Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens securing the Notes Obligations or the Security Documents.
(e) In acting as Notes Collateral Agent or co-Notes Collateral Agent, the Notes Collateral Agent and each co-Notes Collateral Agent may rely upon and enforce each and all of the rights, protections, privileges, powers, immunities, indemnities and benefits of the Trustee under Article 7 hereof.
(f) The Holders of Notes agree that the Notes Collateral Agent shall be entitled to the rights, privileges, protections, immunities, indemnities and benefits provided to the Notes Collateral Agent by this Indenture and the Security Documents. Furthermore, each Holder of a Note, by accepting such Note, consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Notes Collateral Agent to enter into and perform each of the Intercreditor Agreement Agreements and Security Documents in each of its capacities thereunder.
(g) If the Issuer (i) incurs First Priority Lien Obligations not prohibited by this Indenture at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting First Priority Lien Obligations entitled to the benefit of the Intercreditor Agreement Agreements is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officer’s Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor AgreementAgreements) in favor of a designated agent or representative for the holders of the First Priority Lien Obligations so incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the Holders on the terms set forth therein and perform and observe its obligations thereunder.
(h) At all times when the Trustee is not itself the Notes Collateral Agent, the Issuer will deliver to the Trustee copies of all Security Documents delivered to the Notes Collateral Agent and copies of all documents delivered to the Notes Collateral Agent pursuant to this Indenture and the Security Documents
(i) Notwithstanding anything in this Indenture to the contrary and for the avoidance of doubt, the Notes Collateral Agent and the Trustee shall have no duty to act outside of the United States of America in respect of any Collateral.
(j) No notes collateral agent hereunder shall be personally liable for any reason for any act or omission of any other notes collateral agent hereunder.
Appears in 1 contract
Sources: Indenture (Cumulus Media Inc)
Notes Collateral Agent. (a) The Notes Collateral Agent is authorized and empowered to appoint one or more co-Notes Collateral Agents as it deems necessary or appropriate.
(b) Subject to Section 7.01, neither the Trustee nor the Notes Collateral Agent nor any of any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the Notes Obligations, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens securing the Notes Obligations or the Security Documents or any delay in doing so.
(c) The Notes Collateral Agent will be subject to such directions as may be given it by the Trustee from time to time (as required or permitted by this Indenture); provided that in the event of conflict between directions received pursuant to the Security Documents and the Intercreditor Agreement Agreements and directions received hereunder, the Notes Collateral Agent will be subject to directions received pursuant to the Security Documents and the Intercreditor AgreementAgreements. Except as directed by the Trustee as required or permitted by this Indenture and any other representatives or pursuant to the Security Documents or the Intercreditor AgreementAgreements, the Notes Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any other personPerson;
(ii) to foreclose upon or otherwise enforce any Lien securing the Notes Obligations;; or
(iii) to take any other action whatsoever with regard to any or all of the Liens securing the Notes Obligations Obligations, Security Documents or the Security DocumentsCollateral.
(d) The Notes Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens securing the Notes Obligations or the Security Documents.
(e) In acting as Notes Collateral Agent or co-Notes Collateral Agent, the Notes Collateral Agent and each co-Notes Collateral Agent may rely upon and enforce each and all of the rights, protections, privileges, powers, immunities, indemnities and benefits of the Trustee under Article 7 hereof.
(f) The Holders holders of Notes agree that the Notes Collateral Agent shall be entitled to the rights, privileges, protections, immunities, indemnities and benefits provided to the Notes Collateral Agent by this Indenture and the Security Documents. Furthermore, each Holder holder of a Note, by accepting such Note, consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Notes Collateral Agent to enter into and perform each of the Intercreditor Agreement Agreements and Security Documents in each of its capacities thereunder.
(g) If the Issuer Company (i) incurs First Priority Lien Obligations not prohibited by this Indenture at any time when no intercreditor agreement is Refinancing Facilities in effect or at any time when Indebtedness constituting First Priority Lien Obligations entitled to the benefit of the Intercreditor Agreement is concurrently retiredconnection with a Permitted Refinancing, and (ii) delivers to the Notes Collateral Agent an Officer’s Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Senior Lien Intercreditor Agreement) Agreement in favor of a designated agent or representative for the holders of the First Priority Lien Obligations Refinancing Facilities so incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreementSenior Lien Intercreditor Agreement, bind the Holders holders on the terms set forth therein and perform and observe its obligations thereunder.
(h) At all times when the Trustee is not itself the Notes Collateral Agent, upon request of the Issuer Trustee, the Company will deliver to the Trustee copies of all Security Documents delivered to the Notes Collateral Agent and copies of all documents delivered to the Notes Collateral Agent pursuant to this Indenture and the Security Documents.
(i) Notwithstanding anything For so long as the First Lien Intercreditor Agreement is in effect, in taking any action or making any determination under this Indenture to under the contrary and for the avoidance Security Documents (including grants of doubtextensions or exemptions), the Notes Collateral Agent and shall be entitled to rely on the Trustee shall have no duty to act outside determination of the United States Term Loan Collateral Agent in accordance with the terms of America in respect of any Collateralthe First Lien Intercreditor Agreement.
(j) No notes collateral agent hereunder shall be personally liable for any reason for any act or omission of any other notes collateral agent hereunder.
Appears in 1 contract
Sources: Indenture (Gannett Co., Inc.)
Notes Collateral Agent. Each reference herein to any right granted to, benefit conferred upon or power exercisable by the “Notes Collateral Agent” shall be a reference to Notes Collateral Agent, for the benefit of the Secured Parties. Notes Collateral Agent shall be responsible only for the performance of such duties as are expressly set forth herein and no implied covenants, functions or responsibilities shall be read into this Security Agreement or otherwise exist against Notes Collateral Agent. Notes Collateral Agent shall not be responsible for any action taken or not taken by it under this Agreement or with respect to any Security Documents at the request or direction of any Secured Party. While it has no duty under this Agreement to do so, pursuant to any applicable law, each Grantor authorizes Notes Collateral Agent to file or record financing statements and other filing or recording documents or instruments with respect to the Collateral without the signature of such Grantor in such form and in such offices as may be necessary or as Notes Collateral Agent may determine appropriate to perfect the security interests of Notes Collateral Agent under this Agreement. Notwithstanding anything to the contrary herein, the following provisions shall govern Notes Collateral Agent’s rights, powers, obligations and duties under this Agreement:
(a) The Notwithstanding anything herein to the contrary, in no event shall Notes Collateral Agent is authorized and empowered have any obligation to appoint one inquire or more co-investigate as to the correctness, veracity, or content of any instruction pursuant to any other Security Document. In no event shall Notes Collateral Agents as Agent have any liability in respect of any such instruction received by it deems necessary and relied on with respect to any action or appropriateomission taken pursuant thereto.
(b) Subject With respect to Section 7.01Notes Collateral Agent’s duties under this Security Agreement or any of the Security Documents, neither Notes Collateral Agent may act through its attorneys, accountants, experts and such other professionals as Notes Collateral Agent deems necessary, advisable or appropriate and shall not be responsible for the Trustee nor the misconduct or negligence of any attorney, accountant, expert or other such professional appointed with due care.
(c) Neither Notes Collateral Agent nor any of any of their respective its experts, officers, directors, employees, attorneys agents, attorneys-in-fact or agents will affiliates shall be responsible or (i) liable for any action lawfully taken or omitted to be taken by it under or in connection with this Agreement or any of the existenceSecurity Documents (except for its gross negligence or willful misconduct), or (ii) responsible in any manner for any recitals, statements, representations or warranties (other than its own recitals, statements, representations or warranties) made in this Agreement or any of the other Security Documents or in any certificate, report, statement or other document referred to or provided for in, or received by Notes Collateral Agent under or in connection with, this Agreement or any of the Security Documents or for the value, validity, effectiveness, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness enforceability or sufficiency of this Security Agreement or any of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the Notes Obligations, or for any defect or deficiency as to any such matters, Documents or for any failure of the Grantors or any other Person to demand, collect, foreclose perform their obligations hereunder and thereunder. Notes Collateral Agent shall not be under any obligation to any Person to ascertain or realize upon to inquire as to (i) the observance or otherwise enforce performance of any of the Liens securing the Notes Obligations agreements contained in, or conditions of, this Agreement or any of the Security Documents or to inspect the properties, books or records of the Grantors, (ii) whether or not any delay representation or warranty made by any Person in doing so.
(c) The Notes Collateral Agent will be subject to such directions as may be given it by the Trustee from time to time (as required connection with this Agreement or permitted by this Indenture); provided that in the event of conflict between directions received pursuant to the any Security Documents and is true, (iii) the Intercreditor performance by any Person of its obligations under this Agreement and directions received hereunder, the Notes Collateral Agent will be subject to directions received pursuant to the Security Documents and the Intercreditor Agreement. Except as directed by the Trustee as required or permitted by this Indenture and any other representatives pursuant to of the Security Documents or (iv) the Intercreditor Agreement, the Notes Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it breach of or default by any other person;
(ii) to foreclose upon Person of its obligations under this Agreement or otherwise enforce any Lien securing the Notes Obligations;
(iii) to take any other action whatsoever with regard to any or all of the Liens securing the Notes Obligations or the Security Documents.
(d) The Notes Collateral Agent will shall not be accountable only bound to (i) account to any Person for amounts any sum or the profit element of any sum received for its own account; (ii) disclose to any other Person any information relating to the Person if such disclosure would, or might, constitute a breach of any law or regulation or be otherwise actionable at the suit of any Person; (iii) be under any fiduciary duties or obligations other than those for which express provision is made in this Security Agreement or in any of the other Security Documents to which it is a party; or (iv) be required to take any action that it actually receives as a result believes, based on advice of counsel, is in conflict with any applicable law, this Agreement or any of the enforcement of the Liens securing the Notes Obligations or the other Security Documents., or any order of any court or administrative agency;
(e) Notes Collateral Agent shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by Notes Collateral Agent in good faith, except to the extent of Notes Collateral Agent’s gross negligence or willful misconduct.
(f) Notes Collateral Agent shall not be responsible for, nor incur any liability with respect to, (i) the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the security interest in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part under this Agreement or any of the other Security Documents, except to the extent such action or omission constitutes gross negligence or willful misconduct on the part of Notes Collateral Agent, (ii) the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iii) the validity of the title of the Grantors to the Collateral, (iv) insuring the Collateral or (v) the payment of taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral.
(g) Notwithstanding anything in this Agreement or any of the Security Documents to the contrary, (i) in no event shall Notes Collateral Agent or any officer, director, employee, representative or agent of Notes Collateral Agent be liable under or in connection with this Agreement or any of the Security Documents for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including but not limited to lost profits or loss of opportunity, whether or not foreseeable, even if Notes Collateral Agent has been advised of the possibility thereof and regardless of the form of action in which such damages are sought; and (ii) Notes Collateral Agent shall be afforded all of the rights, powers, immunities and indemnities set forth in this Agreement in all of the other Security Documents to which it is a signatory as if such rights, powers, immunities and indemnities were specifically set out in each such Security Documents. In acting no event shall Notes Collateral Agent be obligated to invest any amounts received by it hereunder.
(h) Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Agreement or any of the other Security Documents (i) if such action would, in the reasonable opinion of Notes Collateral Agent (which may be based on the opinion of legal counsel), be contrary to applicable law or any of the Security Documents or any other agreement referred to herein or therein, (ii) if such action is not provided for in this Agreement or any of the other Security Documents or the Intercreditor Agreement or the Indenture, (iii) if, in connection with the taking of any such action hereunder or under any of the Security Documents that would constitute an exercise of remedies hereunder or under any of the Security Documents it shall not first be indemnified to its satisfaction by the Holders against any and all risk of nonpayment, liability and expense that may be incurred by it, its agents or its counsel by reason of taking or continuing to take any such action, or (iv) if, notwithstanding anything to the contrary contained in this Agreement, in connection with the taking of any such action that would constitute a payment due under any agreement or document, it shall not first have received from the Holders or the Grantors funds equal to the amount payable. Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Security Agreement or any of the other Security Documents in accordance with a request of the Directing Creditors or, prior to an Event of Default (or an event of default under any Other Pari Passu Lien Obligations), the requisite percentage of Holders or Secured Parties in accordance with the Indenture in respect of Holders and each other applicable Secured Document in the case of each other Secured Party, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the other Holders, Secured Parties and the Trustee.
(i) Notes Collateral Agent shall not be deemed to have actual, constructive, direct or indirect knowledge or notice of the occurrence of any Default unless and until Notes Collateral Agent has received a written notice or a certificate from the Grantors stating that a Default has occurred. Notes Collateral Agent shall have no obligation whatsoever either prior to or after receiving such notice or certificate to inquire whether a Default has in fact occurred and shall be entitled to rely conclusively, and shall be fully protected in so relying, on any notice or certificate so furnished to it. No provision of this Security Agreement, the Intercreditor Agreement or any of the Security Documents shall require Notes Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under this Security Agreement, any of the other Security Documents or the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability including an advance of moneys necessary to perform work or to take the action requested is not reasonably assured to it, Notes Collateral Agent may decline to act unless it receives indemnity satisfactory to it in its sole discretion, including an advance of moneys necessary to take the action requested. Notes Collateral Agent shall be under no obligation or duty to take any action under this Security Agreement or any of the other Security Documents or otherwise if taking such action (i) would subject Notes Collateral Agent to a tax in any jurisdiction where it is not then subject to a tax or (ii) would require Notes Collateral Agent to qualify to do business in any jurisdiction where it is not then so qualified.
(i) Any corporation into which Notes Collateral Agent may be merged, or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which Notes Collateral Agent shall be a party, shall become an Notes Collateral Agent under this Security Agreement without the execution or filing of any paper or any further act on the part of the parties hereto except for written notice to the other parties hereto.
(j) Notes Collateral Agent may resign as Notes Collateral Agent at any time upon thirty days prior written notice to the Holders, Trustee and the Grantors and may be removed at any time with or without cause by the holders of a majority in the aggregate principal amount of the outstanding Secured Obligations, with any such resignation or removal to become effective only upon the appointment of a successor Notes Collateral Agent under this Section. If Notes Collateral Agent shall provide notice of its resignation or be removed as Notes Collateral Agent, then the holders of a majority in the aggregate principal amount of the outstanding Secured Obligations or EAC may (and if no such successor shall have been appointed within 45 days of Notes Collateral Agent’s resignation or removal, Notes Collateral Agent or EAC may) appoint a successor Notes Collateral Agent which successor agent shall, in the case of any appointment by Notes Collateral Agent, be reasonably acceptable to the holders of a majority in the aggregate principal amount of the outstanding Secured Obligations or shall satisfy the requirements of Section 7.08 of the Indenture, and the former Notes Collateral Agent’s rights, powers and duties as Notes Collateral Agent shall be terminated, without any other or further act or deed on the part of such former Notes Collateral Agent (except that the resigning Notes Collateral Agent shall deliver all Collateral then in its possession to the successor Notes Collateral Agent and shall execute and deliver to the successor Notes Collateral Agent such instruments of assignment and transfer and other similar documents as such successor Notes Collateral Agent shall deem necessary or advisable (at the joint and several expense of the Grantors). After any retiring Notes Collateral Agent’s resignation or removal hereunder as Notes Collateral Agent, the provisions of this Security Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Notes Collateral Agent. In the event that a successor Notes Collateral Agent is not appointed within the time period specified in this Section following the provision of a notice of resignation or removal of Notes Collateral Agent, Notes Collateral Agent, EAC or any other Secured Party representing at least 10% of the principal amount of the Obligations may petition a court of competent jurisdiction for the appointment of a successor Notes Collateral Agent (at the joint and several expense of the Grantors).
(k) Neither Notes Collateral Agent nor any of its officers, directors, employees, agents or attorneys-in-fact has made any representations or warranties to it (except as expressly provided herein) and no act by Notes Collateral Agent hereafter taken, including any review of the Grantors, shall be deemed to constitute any representation or warranty by Notes Collateral Agent to any Secured Party. Each Secured Party will, independently and without reliance upon Notes Collateral Agent or any other Secured Party, 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 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 Grantors. Except for notices, reports and other documents expressly required to be furnished to Notes Collateral Agent hereunder, Notes Collateral Agent shall not have any duty or responsibility to provide any Secured Party with any credit or other information concerning the business, operations, property, financial and other condition or creditworthiness of the Grantors which may come into the possession of Notes Collateral Agent or any of its officers, directors, employees, agents or attorneys-in-fact.
(l) In the event that Notes Collateral Agent is requested to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, which in Notes Collateral Agent’s sole discretion may cause Notes Collateral Agent to be considered an “owner or operator” under any environmental laws or otherwise cause Notes Collateral Agent to incur, or be exposed to, any environmental liability or any liability under any other federal, state or local law, Notes Collateral Agent reserves the right to not follow such direction, to resign as Notes Collateral Agent or co-to arrange for the transfer of the title or control of the asset to a court appointed receiver. Notes Collateral Agent shall not be liable to any Person for any environmental liability or any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of Notes Collateral Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or release or threatened discharge or release of any hazardous materials into the Notes Collateral Agent and each co-Notes Collateral Agent may rely upon and enforce each and all of the rights, protections, privileges, powers, immunities, indemnities and benefits of environment. Neither the Trustee under Article 7 hereof.
(f) The Holders of Notes agree that the nor Notes Collateral Agent shall be entitled to the rights, privileges, protections, immunities, indemnities and benefits provided to the Notes Collateral Agent by this Indenture and the Security Documents. Furthermore, each Holder of a Note, by accepting such Note, consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Notes Collateral Agent to enter into and perform each of the Intercreditor Agreement and Security Documents in each of its capacities thereunder.
(g) If the Issuer (i) incurs First Priority Lien Obligations not prohibited by this Indenture at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting First Priority Lien Obligations entitled to the benefit of the Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officer’s Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement) in favor of a designated agent or representative for the holders of the First Priority Lien Obligations so incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the Holders on the terms set forth therein and perform and observe its obligations thereunder.
(h) At all times when the Trustee is not itself the Notes Collateral Agent, the Issuer will deliver to the Trustee copies of all Security Documents delivered to the Notes Collateral Agent and copies of all documents delivered to the Notes Collateral Agent pursuant to this Indenture and the Security Documents
(i) Notwithstanding anything in this Indenture to the contrary and for the avoidance of doubt, the Notes Collateral Agent and the Trustee shall have no duty to act outside of the United States of America in respect of any Collateral.
(j) No notes collateral agent hereunder shall be personally liable responsible for any reason for any act or omission of any other notes collateral agent hereunder.loss incurr
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Notes Collateral Agent. (a) The U.S. Bank National Association shall initially act as Notes Collateral Agent and the Notes Collateral Agent is authorized and empowered to appoint one or more co-Notes Collateral Agents as it deems necessary or appropriate. Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreement, neither the Notes Collateral Agent nor any of its respective officers, directors, employees or agents or other related persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. Neither the Notes Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own gross negligence or willful misconduct.
(b) Subject to Section 7.01, neither Neither the Trustee nor the Notes Collateral Agent nor any of any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the Notes Obligations, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens securing the Notes Obligations or the Security Documents or any delay in doing so.
(c) The Notes Collateral Agent will be subject to such directions as may be given it by the Trustee from time to time (as required or permitted by this Indenture); provided that in the event of conflict between directions received pursuant to the Security Documents and the Intercreditor Agreement and directions received hereunder, the Notes Collateral Agent will be subject to directions received pursuant to the Security Documents and the Intercreditor Agreement. Except as directed by the Trustee as required or permitted by this Indenture and any other representatives or pursuant to the Security Documents or the Intercreditor AgreementDocuments, the Notes Collateral Agent will not be obligated:
(i1) to act upon directions purported to be delivered to it by any other personPerson;
(ii2) to foreclose upon or otherwise enforce any Lien securing the Notes Obligations;; or
(iii3) to take any other action whatsoever with regard to any or all of the Liens securing Notes Obligations, Security Documents or Collateral.
(d) The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes Obligations or (subject to this Section 11.02), subject to the terms of the Security Documents.
(de) The Notes Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens securing the Notes First-Priority Obligations or the Security Documents.
(ef) In acting as Notes Collateral Agent or co-Notes Collateral Agent, the Notes Collateral Agent and each co-Notes Collateral Agent may rely upon and enforce each and all of the rights, protections, privileges, powers, immunities, indemnities and benefits of the Trustee under Article 7 VII hereof; provided, however, that no heightened standard of care shall be imposed upon the Notes Collateral Agent after the occurrence and during the continuance of a Default or Event of Default.
(fg) The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreement unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Except as otherwise provided in the Security Documents, the Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(h) The Notes 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 Collateral, upon request from the Issuer, the Trustee shall notify the Notes Collateral Agent thereof and promptly shall deliver such Collateral to the Notes Collateral Agent or otherwise deal with such Collateral in accordance with the Notes Collateral Agent’s instructions.
(i) Neither the Trustee nor the Notes Collateral Agent shall have any obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Grantor or is cared for, protected, or insured or has been encumbered, or that any Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Grantor’s property constituting collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Notes Collateral Agent pursuant to this Indenture, any Security Document or the Intercreditor Agreement other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the Notes or as otherwise provided in the Security Documents.
(j) Notwithstanding anything to the contrary contained in this Indenture, the Intercreditor Agreement or the Security Documents, in the event the Notes 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 Notes 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 Notes Collateral Agent has determined that the Notes 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 Notes 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.
(k) The Notes Collateral Agent (i) shall not be liable for any action taken or omitted to be taken by it in connection with this Indenture, the Intercreditor Agreement and the Security Documents or instrument referred to herein or therein, except to the extent that any of the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct, (ii) shall not be liable for interest on any money received by it except as the Notes Collateral Agent may agree in writing with the Issuer (and money held in trust by the Notes Collateral Agent need not be segregated from other funds except to the extent required by law).
(l) The Notes Collateral Agent shall exercise reasonably care in the custody of any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon. The Notes 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 Notes Collateral Agent in good faith.
(m) The parties hereto and the Holders hereby agree and acknowledge that neither the Notes Collateral Agent nor the Trustee shall assume, be responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs (including but not limited to, any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any environmental law as a result of this Indenture, the Intercreditor Agreement, the Security Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture, the Intercreditor Agreement and the Security Documents, the Notes Collateral Agent or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Notes Collateral Agent or the Trustee in the Collateral and that any such actions taken by the Notes Collateral Agent or the Trustee shall not be construed as or otherwise constitute any participation in the management of such Collateral. In the event that the Notes Collateral Agent or the Trustee is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Notes Collateral Agent’s or the Trustee’s sole discretion may cause the Notes Collateral Agent or the Trustee to be considered an “owner or operator” under the provisions of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §9601, et seq., or otherwise cause the Notes Collateral Agent or the Trustee to incur liability under CERCLA or any other federal, state or local law, the Notes Collateral Agent and the Trustee reserves the right, instead of taking such action, to either resign as the Notes Collateral Agent or the Trustee or arrange for the transfer of the title or control of the asset to a court-appointed receiver. Neither the Notes Collateral Agent nor the Trustee shall be liable to the Issuer, the Issuer, the Subsidiary Guarantors or any other Person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Notes Collateral Agent’s or the Trustee’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment. If at any time it is necessary or advisable for property to be possessed, owned, operated or managed by any Person (including the Notes Collateral Agent or the Trustee) other than the Issuer or the Subsidiary Guarantors, subject to the terms of the Security Documents, a majority in interest of Holders shall direct the Notes Collateral Agent or the Trustee to appoint an appropriately qualified Person (excluding the Notes Collateral Agent or the Trustee) who they shall designate to possess, own, operate or manage, as the case may be, the property.
(n) Upon the receipt by the Notes Collateral Agent of a written request of the Issuer signed by an Officer (a “Security Document Order”), the Notes 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 Notes Collateral Agent pursuant to, and is a Security Document Order referred to in, this Section 11.02(n), and (ii) instruct the Notes Collateral Agent to execute and enter into such Security Document; provided that in no event shall the Notes Collateral Agent be required to enter into a Security Document that it determines adversely affects the Notes Collateral Agent in a commercially unreasonable manner (taking into account other security documents it has recently agreed to in similar secured notes transactions). Holders, by their acceptance of the Notes, hereby authorize and direct the Notes Collateral Agent to execute such Security Documents.
(o) The holders of Notes agree that the Notes Collateral Agent shall be entitled to the rights, privileges, protections, immunities, indemnities and benefits provided to the Notes Collateral Agent by this Indenture and the Security Documents. Furthermore, each Holder of a Note, by accepting such Note, consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Notes Collateral Agent to enter into and perform each of the Intercreditor Agreement and Security Documents in each of its capacities thereunder.
(gp) If the Issuer (i) incurs First or any Subsidiary Guarantor Incurs Other First-Priority Lien Obligations not prohibited by this Indenture at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting First Other First-Priority Lien Obligations entitled to the benefit of the Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officer’s Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement) in favor of a designated agent or representative for the holders of the First Other First-Priority Lien Obligations so incurredIncurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the Holders holders on the terms set forth therein and perform and observe its obligations thereunder. The Notes Collateral Agent shall have no duty or obligation to enter into any such intercreditor agreement which affects its own rights or duties in a manner adverse from its rights and duties under the Intercreditor Agreement unless such agreement is satisfactory to the Notes Collateral Agent in its sole discretion with respect thereto; provided that, for the avoidance of doubt, the Notes Collateral Agent shall have no responsibility for the terms or sufficiency of any such intercreditor agreement for any purpose.
(hq) If the Issuer or any Subsidiary Guarantor Incurs Obligations at any time when no intercreditor agreement is in effect and delivers to the Notes Collateral Agent an Officer’s Certificate so stating and requesting the Notes Collateral Agent enter into an intercreditor agreement in favor of a designated agent or representative for the holders of the Obligations so Incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement (including without limitation, any First Lien/Second Lien Intercreditor Agreement, any Permitted Pari Passu Intercreditor Agreement and any Permitted Junior Intercreditor Agreement), bind the holders on the terms set forth therein and perform and observe its obligations thereunder. The Notes Collateral Agent shall have no duty or obligation to enter into any such intercreditor agreement which affects its own rights or duties unless in a manner adverse from its rights and duties under the Intercreditor Agreement such agreement is satisfactory to the Notes Collateral Agent in its sole discretion with respect thereto; provided that, for the avoidance of doubt, the Notes Collateral Agent shall have no responsibility for the terms or sufficiency of any such intercreditor agreement for any purpose.
(r) At all times when the Trustee U.S. Bank National Association is not itself the Notes Collateral Agent, the Issuer will deliver to the Trustee copies of all Security Documents delivered to the Notes Collateral Agent and copies of all documents delivered to the Notes Collateral Agent pursuant to this Indenture and the Security Documents
(i) Notwithstanding anything in this Indenture to the contrary and for the avoidance of doubt, the Notes Collateral Agent and the Trustee shall have no duty to act outside of the United States of America in respect of any Collateral.
(j) No notes collateral agent hereunder shall be personally liable for any reason for any act or omission of any other notes collateral agent hereunder.delive
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Notes Collateral Agent. (a) By accepting a Note, each Holder thereof shall be deemed to have irrevocably appointed U.S. Bank National Association (and its successors) to act on its behalf as the Notes Collateral Agent under each of the Notes Collateral Documents and authorized the Notes Collateral Agent to (i) take such actions on its behalf and to exercise the rights and powers that are delegated to it by the terms of the Notes Collateral Documents or other documents to which it is a party, and (ii) execute each document expressed or permitted to be executed by the Notes Collateral Agent on its behalf. The Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Notes Collateral Documents. The Holders of the Notes may only act through instruction to the Trustee, which, in turn, shall instruct the Notes Collateral Agent. The Notes Collateral Agent is authorized and empowered to appoint one shall have no duties or more co-obligations except those expressly set forth in the Notes Collateral Agents Documents to which it is party. The Notes Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct. The Notes Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Notes Collateral Agent may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person and shall not incur any liability for relying thereon. The Notes Collateral Agent may consult with legal counsel (who may be counsel for 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 reliance on the advice of any such counsel, accountants or experts. Without limiting the generality of the foregoing, the Notes Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an event of default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except rights and powers expressly contemplated hereby or by the Notes Collateral Documents that the Notes Collateral Agent is required to exercise; provided that the Notes Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Notes Collateral Agent to liability or that is contrary to any Notes Collateral Document or applicable law;
(iii) shall not, except as expressly set forth herein and in the Notes Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the Person serving as the Notes Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it deems necessary (a) with the consent or appropriateat the request of the Trustee or (b) in the absence of its own gross negligence or willful misconduct or (c) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreements;
(v) shall not be responsible for or have any duty to ascertain or inquire into (a) any statement, warranty or representation made in or in connection with the Intercreditor Agreements or any other Notes Collateral Document, (b) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (c) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any event of default, (d) the validity, enforceability, effectiveness or genuineness of the Intercreditor Agreements, any other Notes Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Notes Collateral Documents, (e) the value or the sufficiency of any Collateral, or (f) the satisfaction of any condition set forth in any Notes Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Notes Collateral Agent; and
(vi) shall be deemed not to have knowledge of any event of default under any Obligations other than Notes Obligations unless and until written notice describing such event of default is given to the Notes Collateral Agent by the representative of such Obligations or the Issuer; for the avoidance of doubt, the Notes Collateral Agent shall only have knowledge of any event of default under any Notes Obligations in accordance with the provisions of this Indenture. The use of the term “agent” herein with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law other than as a “representative” as such term is used in Section 9-102(a)(73)(E) of the Uniform Commercial Code. BY ACCEPTING A NOTE EACH HOLDER SHALL BE DEEMED TO HAVE IRREVOCABLY AGREED TO THE FOREGOING PROVISIONS OF THIS SECTION 13.05(A) AND SHALL BE BOUND BY THOSE AGREEMENTS TO THE FULLEST EXTENT PERMITTED BY LAW.
(b) Subject to Section 7.01Without limiting the Intercreditor Agreements, neither the Trustee nor the Notes Collateral Agent nor any of any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the Notes Obligations, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens securing the Notes Obligations or the Security Documents or any delay in doing so.
(c) The Notes Collateral Agent will shall be subject to such directions as may be properly given it by the Trustee and/or other Agents, as applicable, from time to time (as required or permitted by in accordance with this Indenture); provided that in , the event of conflict between directions received pursuant to the Security Documents Intercreditor Agreements and the Intercreditor Agreement and directions received hereunder, the other Notes Collateral Agent will be subject to directions received pursuant to the Security Documents and the Intercreditor AgreementDocuments. Except as directed by the Trustee and/or other Agents, as applicable, and as expressly required or permitted by this Indenture Indenture, the Intercreditor Agreements and any the other representatives pursuant Notes Collateral Documents, and in each case subject to the Security Documents or the Intercreditor AgreementAgreements, the Notes Collateral Agent will shall not be obligated:
(i) to act upon directions purported to be delivered to it by any other personPerson;
(ii) to foreclose upon or otherwise enforce any Lien securing the Notes Obligations;or any of the Guarantees; or
(iii) to take any other action whatsoever with regard to any or all of the Liens securing the Notes Obligations Notes, the Guarantees or the Security DocumentsNotes Collateral Documents or with regard to the Collateral.
(c) The Notes Collateral Agent is authorized and empowered to appoint one or more co-agents or sub-agents or attorneys-in-fact as it deems necessary or appropriate in connection herewith and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith.
(d) The Notes Collateral Agent will be accountable only for amounts that it actually receives as a result may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Notes Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Affiliates. The exculpatory provisions of this Article 13 shall apply to any such sub-agent and to the Affiliates of the enforcement of the Liens securing the Notes Obligations or the Security DocumentsCollateral Agent and any such sub-agent.
(e) In acting A resignation or removal of the Notes Collateral Agent and appointment of a successor Notes Collateral Agent shall become effective only upon the successor Notes Collateral Agent’s acceptance of appointment as provided in this Section.
(i) The Notes Collateral Agent may resign in writing at any time by so notifying the Issuer. The Holders of Notes of a majority in principal amount of the then outstanding Notes may remove the Notes Collateral Agent by so notifying the Notes Collateral Agent and the Issuer in writing. The Issuer may remove the Notes Collateral Agent if:
(1) the Notes Collateral Agent ceases to be a Person organized and doing business under the laws of the United States of America or of any state thereof, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $100.0 million as set forth in its most recent published annual report of condition (an “Eligible Collateral Agent”);
(2) the Notes Collateral Agent is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Notes Collateral Agent under any Bankruptcy Law;
(3) a custodian or public officer takes charge of the Notes Collateral Agent or co-its property; or
(4) the Notes Collateral Agent becomes incapable of acting.
(ii) If the Notes Collateral Agent resigns or is removed or if a vacancy exists in the office of Notes Collateral Agent for any reason, the Issuer shall promptly appoint a successor Notes Collateral Agent. Within one year after the successor Notes Collateral Agent takes office, the Holders of a majority in principal amount of the then outstanding Notes may appoint a successor Notes Collateral Agent to replace the successor Notes Collateral Agent appointed by the Issuer.
(iii) If a successor Notes Collateral Agent does not take office within 60 days after the retiring Notes Collateral Agent resigns or is removed, the retiring Notes Collateral Agent, the Issuer, or the Holders of Notes of at least 10% in principal amount of the then outstanding Notes or the Notes Collateral Agent may petition any court of competent jurisdiction for the appointment of a successor Notes Collateral Agent.
(iv) If the Notes Collateral Agent, after written request by any Holder of a Note who has been a Holder of a Note for at least six months, fails to be an Eligible Collateral Agent, such Holder of a Note may petition any court of competent jurisdiction for the removal of the Notes Collateral Agent and each co-the appointment of a successor Notes Collateral Agent.
(v) A successor Notes Collateral Agent may rely upon shall deliver a written acceptance of its appointment to the retiring Notes Collateral Agent and enforce each to the Issuer. Thereupon, the resignation or removal of the retiring Notes Collateral Agent shall become effective, and the successor Notes Collateral Agent shall have all of the rights, protections, privileges, powers, immunities, indemnities powers and benefits duties of the Trustee under Article 7 hereof.
(f) The Holders of Notes agree that the Notes Collateral Agent under this Indenture. The successor Notes Collateral Agent shall be entitled mail a notice of its succession to Holders of the Notes. The retiring Notes Collateral Agent shall promptly transfer all Collateral held by it as Notes Collateral Agent to the rightssuccessor Notes Collateral Agent, privileges, protections, immunities, indemnities and benefits provided that all sums owing to the Notes Collateral Agent by this Indenture hereunder have been paid and the Security Documents. Furthermore, each Holder of a Note, by accepting such Note, consents subject to the terms Lien provided for in Section 7.07 hereof. Notwithstanding replacement of and authorizes and directs the Trustee (in each of its capacities) and the Notes Collateral Agent to enter into and perform each of the Intercreditor Agreement and Security Documents in each of its capacities thereunder.
(g) If the Issuer (i) incurs First Priority Lien Obligations not prohibited by this Indenture at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting First Priority Lien Obligations entitled to the benefit of the Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officer’s Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement) in favor of a designated agent or representative for the holders of the First Priority Lien Obligations so incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the Holders on the terms set forth therein and perform and observe its obligations thereunder.
(h) At all times when the Trustee is not itself the Notes Collateral Agent, the Issuer will deliver to the Trustee copies of all Security Documents delivered to the Notes Collateral Agent and copies of all documents delivered to the Notes Collateral Agent pursuant to this Indenture and Section 13.05(e), the Security DocumentsIssuer’s obligations under Section 7.07 hereof shall continue for the benefit of the retiring Notes Collateral Agent.
(if) Notwithstanding anything in this Indenture Each Holder, by its acceptance of the Notes, shall be deemed to have consented and agreed to the contrary terms of each Notes Collateral Document, as originally in effect and for as amended, supplemented or replaced from time to time in accordance with its terms or the avoidance terms of doubt, this Indenture; and authorizes and empowers the Trustee and the Notes Collateral Agent (including through the Intercreditor Agreements) to bind the Holders as set forth in the applicable Notes Collateral Documents to which they are a party and the Trustee shall have no duty to act outside of the United States of America in respect of any Collateralperform its obligations and exercise its rights and powers thereunder.
(jg) No notes collateral agent hereunder Except as contemplated by the Notes Collateral Documents, neither the Trustee nor the Notes Collateral Agent shall be personally liable responsible (1) for any reason for any act the existence, genuineness or omission value of any other notes collateral agent hereunderof the Collateral, (2) for filing any financing or continuation statements or recording any documents or instruments in any public office or otherwise perfecting or maintaining the perfection of any security interest in the Collateral, (3) for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, (4) for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (5) for the validity of the title of the Issuer or any Grantor to the Collateral, for insuring the Collateral or (6) for the payment of taxes, charges, assessments or Liens upon the Collateral or (7) otherwise as to the maintenance of the Collateral.
Appears in 1 contract
Sources: Indenture (Arconic Corp)
Notes Collateral Agent. (a) The Notes Collateral Agent is authorized and empowered to appoint one or more co-Notes Collateral Agents as it deems necessary or appropriate.
(b) Subject to Section 7.01, neither the Trustee nor the Notes Collateral Agent nor any of any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the Notes Obligations, or Obligations and Other Pari Passu Obligations for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens securing the Notes Obligations and Other Pari Passu Obligations or the Security Documents or any delay in doing so.
(c) The Notes Collateral Agent will be subject to such directions as may be given it by the Trustee from time to time (as required or permitted by this Indenture); provided that in the event of conflict between directions received pursuant to the Security Documents and the Intercreditor Agreement and directions received hereunder, the Notes Collateral Agent will be subject to directions received pursuant to the Security Documents and the Intercreditor AgreementAgreements. Except as directed by the Trustee as required or permitted by this Indenture and any other representatives or pursuant to the Security Documents or the Intercreditor AgreementDocuments, the Notes Collateral Agent will not be obligated:
(i1) to act upon directions purported to be delivered to it by any other personPerson;
(ii2) to foreclose upon or otherwise enforce any Lien securing the Notes Obligations and Other Pari Passu Obligations;; or
(iii3) to take any other action whatsoever with regard to any or all of the Liens securing the Notes Obligations and Other Pari Passu Obligations, Security Documents or the Security DocumentsCollateral.
(d) The Notes Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens securing the Notes Obligations and Other Pari Passu Obligations or the Security Documents.
(e) In acting as Notes Collateral Agent or co-Notes Collateral Agent, the Notes Collateral Agent and each co-Notes Collateral Agent may rely upon and enforce each and all of the rights, protections, privileges, powers, immunities, indemnities and benefits of the Trustee under Article 7 hereof.
(f) The Holders of Notes agree that the Notes Collateral Agent shall be entitled to the rights, privileges, protections, immunities, indemnities and benefits provided to the Notes Collateral Agent by this Indenture and the Security Documents. Furthermore, each Holder of a Note, by accepting such Note, consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Notes Collateral Agent to enter into and perform each of the Intercreditor Agreement and Security Documents in each of its capacities thereunder.
(g) If the Issuer (i) incurs First Priority Lien Obligations not prohibited by this Indenture at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting First Priority Lien Obligations entitled to the benefit of the Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officer’s Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement) in favor of a designated agent or representative for the holders of the First Priority Lien Obligations so incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the Holders on the terms set forth therein and perform and observe its obligations thereunder.
(h) At all times when the Trustee is not itself the Notes Collateral Agent, the Issuer will deliver to the Trustee copies of all Security Documents delivered to the Notes Collateral Agent and copies of all documents delivered to the Notes Collateral Agent pursuant to this Indenture and the Security Documents
(i) Notwithstanding anything in this Indenture to the contrary and for the avoidance of doubt, the Notes Collateral Agent and the Trustee shall have no duty to act outside of the United States of America in respect of any Collateral.
(j) No notes collateral agent hereunder shall be personally liable for any reason for any act or omission of any other notes collateral agent hereunder.
Appears in 1 contract
Sources: Indenture (EP Energy Corp)
Notes Collateral Agent. (a) By accepting a Security, each Holder shall be deemed to have irrevocably appointed the Notes Collateral Agent to act as its agent under the Security Documents and the Intercreditor Agreement and to have irrevocably authorized the Notes Collateral Agent to (i) perform the duties and exercise the rights, powers and discretions that are specifically given to it under the Security Documents, the Intercreditor Agreement or other documents to which it is a party, together with any other incidental rights, powers and discretions; and (ii) execute each document expressed to be executed by the Notes Collateral Agent on its behalf.
(b) The Notes Collateral Agent is authorized and empowered to appoint one or more subagents or co-Notes Collateral Agents collateral agents as it deems necessary or appropriate.
(bc) The Notes Collateral Agent shall have all the rights and protection provided in the Note Documents as well as the rights and protections afforded to the Trustee in Sections 7.02 and 7.07; provided, however, that the Company shall not reimburse any expense or indemnify against any loss, liability or expense incurred by the Notes Collateral Agent through the Notes Collateral Agent’s own willful misconduct, gross negligence or bad faith.
(d) Subject to Section 7.01, neither none of the Trustee nor Trustee, the Notes Collateral Agent nor any of or any of their respective officers, directors, employees, attorneys or agents will shall be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the Notes Obligations, Securities or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens securing the Notes Obligations or the Security Documents or any delay in doing so.
(ce) The Notes Collateral Agent will be subject to such directions as may be given it by the Trustee from time to time (as required or permitted by this Indenture); provided that in the event of conflict between directions received pursuant Subject to the Security Documents and the Intercreditor Agreement and directions received hereunderDocuments, the Notes Collateral Agent will be subject to directions received pursuant to the Security Documents and the Intercreditor Agreement. Except except as directed by the Trustee as required or permitted by this Indenture and any other representatives pursuant to Indenture, the Security Documents or the Intercreditor Agreement, Holders acknowledge that the Notes Collateral Agent will shall not be obligated:
(i1) to act upon directions purported to be delivered to it by any other personPerson;
(ii2) to foreclose upon or otherwise enforce any Lien securing the Notes Obligations;Securities; or
(iii3) to take any other action whatsoever with regard to any or all of the Liens securing the Notes Obligations Securities, the Security Documents or the Security DocumentsCollateral.
(d) The Notes Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens securing the Notes Obligations or the Security Documents.
(ef) In acting as Notes Collateral Agent or Agent, co-collateral agent or sub-collateral agent, the Notes Collateral Agent, the Notes Collateral Agent and each co-Notes Collateral Agent collateral agent and each sub-collateral agent may rely upon and enforce each and all of the rights, protections, privileges, powers, immunities, indemnities and benefits of the Trustee under Article 7 hereof7.
(f) The Holders of Notes agree that the Notes Collateral Agent shall be entitled to the rights, privileges, protections, immunities, indemnities and benefits provided to the Notes Collateral Agent by this Indenture and the Security Documents. Furthermore, each Holder of a Note, by accepting such Note, consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Notes Collateral Agent to enter into and perform each of the Intercreditor Agreement and Security Documents in each of its capacities thereunder.
(g) If the Issuer (i) incurs First Priority Lien Obligations not prohibited by this Indenture at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting First Priority Lien Obligations entitled to the benefit of the Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officer’s Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement) in favor of a designated agent or representative for the holders of the First Priority Lien Obligations so incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the Holders on the terms set forth therein and perform and observe its obligations thereunder.
(h) At all times when the Trustee is not itself the Notes Collateral Agent, the Issuer will deliver to the Trustee copies of all Security Documents delivered to the Notes Collateral Agent and copies of all documents delivered to the Notes Collateral Agent pursuant to this Indenture and the Security Documents
(i) Notwithstanding anything in this Indenture to the contrary and for the avoidance of doubt, the Notes Collateral Agent and the Trustee shall have no duty to act outside of the United States of America in respect of any Collateral.
(j) No notes collateral agent hereunder shall be personally liable for any reason for any act or omission of any other notes collateral agent hereunder.
Appears in 1 contract
Sources: Indenture (LSB Industries Inc)
Notes Collateral Agent. (a) The Notes Collateral Agent is authorized and empowered to appoint one or more co-Notes Collateral Agents as it deems necessary or appropriate.
(b) Subject to Section 7.01, neither the Trustee nor the Notes Collateral Agent nor any of any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the Notes ObligationsLien, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens securing the Notes Obligations or the Security Documents or any delay in doing so.
(c) The Subject to the Security Documents and the Intercreditor Agreements, the Notes Collateral Agent will be subject to such directions as may be given it by the Trustee from time to time (as required or permitted by this Indenture); provided that in . Subject to the event terms of conflict between directions received pursuant to the Security Documents and the Intercreditor Agreement and directions received hereunderAgreements, the Notes Collateral Agent will be subject to directions received pursuant to the Security Documents and the Intercreditor Agreement. Except except as directed by the Trustee as required or permitted by this Indenture and any other representatives pursuant to the Security Documents or the Intercreditor Agreementrepresentatives, the Notes Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any other personPerson;
(ii) to foreclose upon or otherwise enforce any Lien securing the Notes Obligations;Lien; or
(iii) to take any other action whatsoever with regard to any or all of the Liens securing the Notes Obligations Liens, Security Documents or the Security DocumentsCollateral.
(d) The Notes Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens securing the Notes Obligations or the Security Documents.
(e) In acting as Notes Collateral Agent or co-Notes Collateral Agent, the Notes Collateral Agent and each co-Notes Collateral Agent may rely upon and enforce each and all of the rights, protections, privileges, powers, immunities, indemnities and benefits of the Trustee under Article 7 hereof.
(f) The Holders of Notes agree that the Notes Collateral Agent shall be entitled to the rights, privileges, protections, immunities, indemnities and benefits provided to the Notes Collateral Agent by this Indenture and the Security Documents. Furthermore, each Holder of a Note, by accepting such Note, consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Notes Collateral Agent to enter into and perform each of the Intercreditor Agreement and Security Documents in each of its capacities thereunder[Intentionally omitted].
(g) If the Issuer (i) incurs First Priority Lien Incurs Revolving Facility Obligations not prohibited by this Indenture at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting First Priority Lien Revolving Facility Obligations entitled to the benefit of the an existing Senior Lender Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officer’s Officers’ Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Senior Lender Intercreditor AgreementAgreement in effect on the Issue Date) in favor of a designated agent or representative for the holders of the First Priority Lien Revolving Facility Obligations so incurredIncurred, the Trustee and the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the Holders on the terms set forth therein and perform and observe its obligations thereunder.
(h) At all times when the Trustee is not itself the Notes Collateral Agent, the Issuer will deliver to the Trustee copies of all Security Documents delivered to the Notes Collateral Agent and copies of all documents delivered to the Notes Collateral Agent pursuant to this Indenture and the Security Documents
(i) Notwithstanding anything in this Indenture to the contrary and for the avoidance of doubt, the Notes Collateral Agent and the Trustee shall have no duty to act outside of the United States of America in respect of any Collateral.
(j) No notes collateral agent hereunder shall be personally liable for any reason for any act or omission of any other notes collateral agent hereunder.
Appears in 1 contract
Sources: Indenture (Kerr Group Inc)
Notes Collateral Agent. (a) The Notes Collateral Agent is authorized and empowered to appoint one or more co-Notes Collateral Agents as it deems necessary or appropriate.
(b) Subject to Section 7.01, neither the Trustee nor the Notes Collateral Agent nor any of any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the Notes Obligations, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens securing the Notes Obligations or the Security Documents or any delay in doing so.
(c) The Notes Collateral Agent will be subject to such directions as may be given it by the Trustee from time to time (as required or permitted by this Indenture); provided that in the event of conflict between directions received pursuant to the Security Documents and the Intercreditor Agreement Agreements and directions received hereunder, the Notes Collateral Agent will be subject to directions received pursuant to the Security Documents and the Intercreditor AgreementAgreements. Except as directed by the Trustee as required or permitted by this Indenture and any other representatives or pursuant to the Security Documents or the Intercreditor AgreementAgreements, the Notes Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any other personPerson;
(ii) to foreclose upon or otherwise enforce any Lien securing the Notes Obligations;; or
(iii) to take any other action whatsoever with regard to any or all of the Liens securing the Notes Obligations Obligations, Security Documents or the Security DocumentsCollateral.
(d) The Notes Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens securing the Notes Obligations or the Security Documents.
(e) In acting as Notes Collateral Agent or co-Notes Collateral Agent, the Notes Collateral Agent and each co-Notes Collateral Agent may rely upon and enforce each and all of the rights, protections, privileges, powers, immunities, indemnities and benefits of the Trustee under Article 7 hereof.
(f) The Holders holders of Notes agree that the Notes Collateral Agent shall be entitled to the rights, privileges, protections, immunities, indemnities and benefits provided to the Notes Collateral Agent by this Indenture and the Security Documents. Furthermore, each Holder holder of a Note, by accepting such Note, consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Notes Collateral Agent to enter into and perform each of the Intercreditor Agreement Agreements and Security Documents in each of its capacities thereunder.
(g) If the Issuer Company (i) incurs First Priority Lien Obligations not prohibited by this Indenture at any time when no intercreditor agreement is Refinancing Facilities in effect or at any time when Indebtedness constituting First Priority Lien Obligations entitled to the benefit connection with a Permitted Refinancing in respect of the Intercreditor Agreement is concurrently retired2024 Term Loan, and (ii) delivers to the Notes Collateral Agent an Officer’s Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Senior Lien Intercreditor Agreement) Agreement in favor of a designated agent or representative for the holders of the First Priority Lien Obligations Refinancing Facilities so incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreementSenior Lien Intercreditor Agreement, bind the Holders holders on the terms set forth therein and perform and observe its obligations thereunder.
(h) At all times when the Trustee is not itself the Notes Collateral Agent, upon request of the Issuer Trustee, the Company will deliver to the Trustee copies of all Security Documents delivered to the Notes Collateral Agent and copies of all documents delivered to the Notes Collateral Agent pursuant to this Indenture and the Security Documents
(i) Notwithstanding anything in this Indenture to the contrary and for the avoidance of doubt, the Notes Collateral Agent and the Trustee shall have no duty to act outside of the United States of America in respect of any Collateral.
(j) No notes collateral agent hereunder shall be personally liable for any reason for any act or omission of any other notes collateral agent hereunder.
Appears in 1 contract
Sources: Indenture (Gannett Co., Inc.)
Notes Collateral Agent. (a) The Notes Collateral Agent is authorized and empowered to appoint one or more co-Notes Collateral Agents as it deems necessary or appropriate.
(b) Subject to Section 7.01, neither the Trustee nor the Notes Collateral Agent nor any of any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the Notes Obligations, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens securing the Notes Obligations or the Security Documents or any delay in doing so.
(c) The Notes Collateral Agent will be subject to such directions as may be given it by the Trustee from time to time (as required or permitted by this Indenture); provided that in the event of conflict between directions received pursuant to the Security Documents and the Intercreditor Agreement Agreements and directions received hereunder, the Notes Collateral Agent will be subject to directions received pursuant to the Security Documents and the Intercreditor AgreementAgreements. Except as directed by the Trustee as required or permitted by this Indenture and any other representatives pursuant to the Security Documents or the Intercreditor AgreementAgreements, the Notes Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any other person;
(ii) to foreclose upon or otherwise enforce any Lien securing the Notes Obligations;; or
(iii) to take any other action whatsoever with regard to any or all of the Liens securing the Notes Obligations or the Security Documents.
(d) The Notes Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens securing the Notes Obligations or the Security Documents.
(e) In acting as Notes Collateral Agent or co-Notes Collateral Agent, the Notes Collateral Agent and each co-Notes Collateral Agent may rely upon and enforce each and all of the rights, protections, privileges, powers, immunities, indemnities and benefits of the Trustee under Article 7 hereof.
(f) The Holders of Notes agree that the Notes Collateral Agent shall be entitled to the rights, privileges, protections, immunities, indemnities and benefits provided to the Notes Collateral Agent by this Indenture and the Security Documents. Furthermore, each Holder of a Note, by accepting such Note, consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Notes Collateral Agent to enter into and perform each of the Intercreditor Agreement Agreements and Security Documents in each of its capacities thereunder.
(g) If the Issuer (i) incurs First Priority Lien Obligations not prohibited by this Indenture at any time when no intercreditor agreement the Pari Passu Intercreditor Agreement is not in effect or at any time when Indebtedness constituting First Priority Lien Obligations entitled to the benefit of the Pari Passu Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officer’s Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Pari Passu Intercreditor Agreement) in favor of a designated agent or representative for the holders of the First Priority Lien Obligations so incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the Holders on the terms set forth therein and perform and observe its obligations thereunder. If the Issuer (i) incurs Obligations not prohibited by this Indenture that are intended to be secured by Liens junior to the Liens securing the Notes Obligations at any time when the Junior Lien Intercreditor Agreement is not in effect or at any time when Indebtedness constituting Second Priority Debt (as defined in the Junior Lien Intercreditor Agreement) is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officer’s Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Junior Lien Intercreditor Agreement) governing the rights of the holders of such Obligations and the Holders of the Notes, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the Holders on the terms set forth therein and perform and observe its obligations thereunder. If the Issuer (i) incurs Obligations not prohibited by this Indenture that are expressly permitted hereunder to be secured by Liens ▇▇ ▇he ABL Priority Collateral senior to the Liens securing the Notes Obligations and by second-priority Liens on the Term Loan Priority Collateral at any time when the ABL/Term Loan Intercreditor Agreement is not in effect or at any time when Indebtedness constituting Revolving Facility Obligations (as defined in the ABL/Term Loan Intercreditor Agreement) is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officer’s Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the ABL/Term Loan Intercreditor Agreement) governing the rights of the holders of such Obligations and the Holders of the Notes, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the Holders on the terms set forth therein and perform and observe its obligations thereunder.
(h) At all times when the Trustee is not itself the Notes Collateral Agent, the Issuer will deliver to the Trustee copies of all Security Documents delivered to the Notes Collateral Agent and copies of all documents delivered to the Notes Collateral Agent pursuant to this Indenture and the Security Documents.
(i) Notwithstanding anything in this Indenture to the contrary and for the avoidance of doubt, the Notes Collateral Agent and the Trustee shall have no duty to act outside of the United States of America in respect of any Collateral.
(j) No notes collateral agent hereunder shall be personally liable for any reason for any act or omission of any other notes collateral agent hereunder.
Appears in 1 contract
Sources: Indenture (Cumulus Media Inc)
Notes Collateral Agent. (a) The Notes Collateral Agent is authorized and empowered to appoint one or more co-Notes Collateral Agents as it deems necessary or appropriate.
(b) Subject to Section 7.01, neither the Trustee nor the Notes Collateral Agent nor any of any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the Notes Obligations, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens securing the Notes Obligations or the Security Documents or any delay in doing so.
(c) The Notes Collateral Agent will be subject to such directions as may be given it by the Trustee from time to time (as required or permitted by this Indenture); provided that in the event of conflict between directions received pursuant to the Security Documents and the Intercreditor Agreement and directions received hereunder, the Notes Collateral Agent will be subject to directions received pursuant to the Security Documents and the Intercreditor Agreement. Except as directed by the Trustee as required or permitted by this Indenture and any other representatives pursuant to the Security Documents or the Intercreditor Agreement, the Notes Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any other person;
(ii) to foreclose upon or otherwise enforce any Lien securing the Notes Obligations;
(iii) to take any other action whatsoever with regard to any or all of the Liens securing the Notes Obligations or the Security Documents.
(d) The Notes Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens securing the Notes Obligations or the Security Documents.
(e) In acting as Notes Collateral Agent or co-Notes Collateral Agent, the Notes Collateral Agent and each co-Notes Collateral Agent may rely upon and enforce each and all of the rights, protections, privileges, powers, immunities, indemnities and benefits of the Trustee under Article 7 hereof.
(f) The Holders of Notes agree that the Notes Collateral Agent shall be entitled to the rights, privileges, protections, immunities, indemnities and benefits provided to the Notes Collateral Agent by this Indenture and the Security Documents. Furthermore, each Holder of a Note, by accepting such Note, consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Notes Collateral Agent to (i) enter into and perform each of the Intercreditor Agreement and the Second Lien Notes Security Documents Agreement in each of its capacities thereunderthereunder by executing an Other Second Priority Lien Secured Party Consent substantially in the form of Exhibit V to the Second Lien Notes Security Agreement and (ii) perform its obligations under each of the Intercreditor Agreement and the Security Documents in accordance with the terms thereof.
(g) If the Issuer (i) incurs First Priority Lien Obligations not prohibited by this Indenture at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting First Priority Lien Obligations entitled to the benefit of the Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officer’s Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement) in favor of a designated agent or representative for the holders of the First Priority Lien Obligations so incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the Holders on the terms set forth therein and perform and observe its obligations thereunder.
(h) At all times when the Trustee is not itself the Notes Collateral Agent, the Issuer will deliver to the Trustee copies of all Security Documents delivered to the Notes Collateral Agent and copies of all documents delivered to the Notes Collateral Agent pursuant to this Indenture and the Security Documents.
(i) Notwithstanding anything in this Indenture to the contrary and for the avoidance of doubt, the Notes Collateral Agent and the Trustee shall have no duty to act outside of the United States of America in respect of any Collateral.
(j) No notes collateral agent hereunder shall be personally liable for any reason for any act or omission of any other notes collateral agent hereunder.
Appears in 1 contract
Notes Collateral Agent. (a) The Notes Collateral Agent is authorized and empowered to appoint one or more co-Notes Collateral Agents as it deems necessary or appropriate.
(b) Subject to Section 7.017.1, neither the Trustee nor the Notes Collateral Agent nor any of any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the Notes Obligations, or Obligations and Second Priority Obligations for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens securing the Notes Obligations and Second Priority Obligations or the Security Documents or any delay in doing so.
(c) The Notes Collateral Agent will be subject to such directions as may be given it by the Trustee from time to time (as required or permitted by this Indenture); provided that in the event of conflict between directions received pursuant to the Security Documents and the Intercreditor Agreement and directions received hereunder, the Notes Collateral Agent will be subject to directions received pursuant to the Security Documents and the Intercreditor Agreement. Except as directed by the Trustee as required or permitted by this Indenture and any other representatives or pursuant to the Security Documents or the Intercreditor AgreementDocuments, the Notes Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any other personPerson;
(ii) to foreclose upon or otherwise enforce any Lien securing the Notes Obligations and Second Priority Obligations;; or
(iii) to take any other action whatsoever with regard to any or all of the Liens securing the Notes Obligations and Second Priority Obligations, Security Documents or the Security DocumentsCollateral.
(d) The Notes Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens securing the Notes Obligations and Second Priority Obligations or the Security Documents.
(e) In acting as Notes Collateral Agent or co-Notes Collateral Agent, the Notes Collateral Agent and each co-Notes Collateral Agent may rely upon and enforce each and all of the rights, protections, privileges, powers, immunities, indemnities and benefits of the Trustee under Article 7 VII hereof.
(f) The Holders holders of Notes agree that the Notes Collateral Agent shall be entitled to the rights, privileges, protections, immunities, indemnities and benefits provided to the Notes Collateral Agent by this Indenture and the Security Documents. Furthermore, each Holder holder of a Note, by accepting such Note, consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Notes Collateral Agent to enter into and perform each of the Intercreditor Agreement and Security Documents in each of its capacities thereunder.
(g) If the Issuer (i) incurs First Priority Lien Obligations not prohibited by this Indenture at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting First Priority Lien Obligations entitled to the benefit of the Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officer’s Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement) in favor of a designated agent or representative for the holders of the First Priority Lien Obligations so incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the Holders on the terms set forth therein and perform and observe its obligations thereunder.
(h) At all times when the Trustee is not itself the Notes Collateral Agent, the Issuer will deliver to the Trustee copies of all Security Documents delivered to the Notes Collateral Agent and copies of all documents delivered to the Notes Collateral Agent pursuant to this Indenture and the Security Documents.
(ih) Notwithstanding anything in this Indenture to the contrary and for the avoidance of doubt, the Notes Collateral Agent and the Trustee shall have no duty to act outside of the United States of America in respect of any Collateral.
(j) No notes collateral agent hereunder shall be personally liable for any reason for any act or omission of any other notes collateral agent hereunder.
Appears in 1 contract
Sources: Indenture (LiveWatch Security, LLC)
Notes Collateral Agent. (a) The Notes Collateral Agent is authorized and empowered to appoint one or more co-Notes Collateral Agents as it deems necessary or appropriate.
(b) Subject to Section 7.01, neither the Trustee nor the Notes Collateral Agent nor any of any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the Notes Obligations, or Obligations and Other Pari Passu Obligations for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens securing the Notes Obligations and Other Pari Passu Obligations or the Security Documents or any delay in doing so.
(c) The Notes Collateral Agent will be subject to such directions as may be given it by the Trustee from time to time (as required or permitted by this Indenture); provided that in the event of conflict between directions received pursuant to the Security Documents and the Intercreditor Agreement and directions received hereunder, the Notes Collateral Agent will be subject to directions received pursuant to the Security Documents and the Intercreditor AgreementAgreements. Except as directed by the Trustee as required or permitted by this Indenture and any other representatives or pursuant to the Security Documents or the Intercreditor AgreementDocuments, the Notes Collateral Agent will not be obligated:
(i1) to act upon directions purported to be delivered to it by any other personPerson;
(ii2) to foreclose upon or otherwise enforce any Lien securing the Notes Obligations and Other Pari Passu Obligations;; or
(iii3) to take any other action whatsoever with regard to any or all of the Liens securing the Notes Obligations and Other Pari Passu Obligations, Security Documents or the Security DocumentsCollateral.
(d) The Notes Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens securing the Notes Obligations and Other Pari Passu Obligations or the Security Documents.
(e) In acting as Notes Collateral Agent or co-Notes Collateral Agent, the Notes Collateral Agent and each co-Notes Collateral Agent may rely upon and enforce each and all of the rights, protections, privileges, powers, immunities, indemnities and benefits of the Trustee under Article 7 VII hereof.
(f) The Holders holders of Notes agree that the Notes Collateral Agent shall be entitled to the rights, privileges, protections, immunities, indemnities and benefits provided to the Notes Collateral Agent by this Indenture and the Security Documents. Furthermore, each Holder holder of a Note, by accepting such Note, consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Notes Collateral Agent to enter into and perform each of the Intercreditor Agreement and Security Documents in each of its capacities thereunder.
(g) If the Issuer Issuers (i) incurs First Incur First-Priority Lien Obligations not prohibited by this Indenture at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting First First-Priority Lien Obligations entitled to the benefit of the an existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officer’s Officers’ Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the applicable existing Intercreditor AgreementAgreements) in favor of a designated agent or representative for the holders of the First First-Priority Lien Obligations so incurredIncurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the Holders holders on the terms set forth therein and perform and observe its obligations thereunder. If the Issuers (i) Incur Other Pari Passu Obligations at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting Other Pari Passu Obligations entitled to the benefit of an existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officers’ Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the applicable existing Intercreditor Agreement) in favor of a designated agent or representative for the holders of the Other Pari Passu Obligations so Incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the holders on the terms set forth therein and perform and observe its obligations thereunder. If the Issuers (i) Incur Junior Lien Obligations at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting Junior Lien Obligations entitled to the benefit of an existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officers’ Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the applicable existing Intercreditor Agreement) in favor of a designated agent or representative for the holders of the Junior Lien Obligations so Incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the holders on the terms set forth therein and perform and observe its obligations thereunder.
(h) At all times when the Trustee is not itself the Notes Collateral Agent, the Issuer Issuers will deliver to the Trustee copies of all Security Documents delivered to the Notes Collateral Agent and copies of all documents delivered to the Notes Collateral Agent pursuant to this Indenture and the Security Documents.
(i) Notwithstanding anything in this Indenture to the contrary and for the avoidance of doubt, the Notes Collateral Agent and the Trustee shall have no duty to act outside of the United States of America in respect of any Collateral.
(j) No notes collateral agent hereunder shall be personally liable for any reason for any act or omission of any other notes collateral agent hereunder.
Appears in 1 contract
Sources: Indenture (EP Energy Corp)
Notes Collateral Agent. (a) The Notes Collateral Agent is authorized and empowered to appoint one or more co-Notes Collateral Agents as it deems necessary or appropriate.
(b) Subject to Section 7.01Article VII, neither the Trustee nor the Notes Collateral Agent nor any of any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Notes Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the Notes Obligations, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens securing the Notes Obligations or the Security Notes Collateral Documents or any delay in doing so.
(c) The Notes Collateral Agent will be subject to such directions as may be given it by the Trustee from time to time (as required or permitted by this Indenture); provided that in the event of conflict between directions received pursuant to the Security Notes Collateral Documents and the Intercreditor Agreement Agreements and directions received hereunder, the Notes Collateral Agent will be subject to directions received pursuant to the Security Notes Collateral Documents and the Intercreditor AgreementAgreements. Except as directed by the Trustee as required or permitted by this Indenture and any other representatives or pursuant to the Security Notes Collateral Documents or the Intercreditor AgreementAgreements, the Notes Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any other personPerson;
(ii) to foreclose upon or otherwise enforce any Lien securing the Notes Obligations;; or
(iii) to take any other action whatsoever with regard to any or all of the Liens securing the Notes Obligations Obligations, Notes Collateral Documents or the Security DocumentsCollateral.
(d) The Notes Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens securing the Notes Obligations or the Security Notes Collateral Documents.
(e) In acting as Notes Collateral Agent or co-Notes Collateral Agent, the Notes Collateral Agent and each co-Notes Collateral Agent may rely upon and enforce each and all of the rights, protections, privileges, powers, immunities, indemnities and benefits of the Trustee under Article 7 VII hereof.
(f) The Holders holders of Notes agree that the Notes Collateral Agent shall be entitled to the rights, privileges, protections, immunities, indemnities and benefits provided to the Notes Collateral Agent by this Indenture and the Security Notes Collateral Documents. Furthermore, each Holder holder of a Note, by accepting such Note, consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Notes Collateral Agent to enter into and perform each of the Intercreditor Agreement Agreements and Security Notes Collateral Documents in each of its capacities thereunder.
(g) If the Issuer (i) incurs First Priority Lien Obligations not prohibited by this Indenture at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting First Priority Lien Obligations entitled to the benefit of the Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officer’s Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement) in favor of a designated agent or representative for the holders of the First Priority Lien Obligations so incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the Holders on the terms set forth therein and perform and observe its obligations thereunder[Reserved.]
(h) At all times when the Trustee is not itself the Notes Collateral Agent, upon request of the Issuer Trustee, the Company will deliver to the Trustee copies of all Security Notes Collateral Documents delivered to the Notes Collateral Agent and copies of all documents delivered to the Notes Collateral Agent pursuant to this Indenture and the Security Notes Collateral Documents.
(i) Notwithstanding anything For so long as the First Lien Intercreditor Agreement is in effect, in taking any action or making any determination under this Indenture to under the contrary and for the avoidance Notes Collateral Documents (including grants of doubtextensions or exemptions), the Notes Collateral Agent and shall be entitled to rely on the Trustee shall have no duty to act outside determination of the United States Term Loan Collateral Agent in accordance with the terms of America in respect of any Collateralthe First Lien-First Lien Intercreditor Agreement.
(j) No notes collateral agent hereunder shall be personally liable for any reason for any act or omission of any other notes collateral agent hereunder.
Appears in 1 contract
Sources: Indenture (Gannett Co., Inc.)