Common use of Second-Priority Collateral Agent Clause in Contracts

Second-Priority 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 Second Priority Collateral Agent under each of the Notes Collateral Documents and authorized the Second Priority 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, together with any other incidental rights and powers and (ii) execute each document expressed or permitted to be executed by the Second Priority 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 Second Priority Collateral Agent. The Second Priority Collateral Agent shall have no duties or obligations except those expressly set forth in the Notes Collateral Documents to which it is party. The Second Priority 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 Second Priority 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 Second Priority 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 Second Priority 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 Second Priority 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 discretionary rights and powers expressly contemplated hereby or by the Notes Collateral Documents that the Second Priority Collateral Agent is required to exercise; provided that the Second Priority Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Second Priority 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 Second Priority Collateral Agent or any of its Affiliates in any capacity; (iv) shall not be liable for any action taken or not taken by it (a) with the consent or at the request of the Trustee 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. The Second Priority Collateral Agent shall be deemed not to have knowledge of any event of default under any First Priority Obligations unless and until written notice describing such event of default is given to the Second Priority Collateral Agent by the First Priority Collateral Agent or the Issuer; and (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 Second Priority Collateral Agent. The use of the term “agent” herein with reference to the Second Priority 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) Without limiting the Intercreditor Agreements, the Second Priority Collateral Agent 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 in accordance with this Indenture, the Intercreditor Agreements and the other Notes Collateral Documents. Except as directed by the Trustee and/or other Agents, as applicable, and as expressly required by this Indenture, the Intercreditor Agreements and the other Notes Collateral Documents, and in each case subject to the Intercreditor Agreements, the Second Priority Collateral Agent shall 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 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, the Guarantees or the Notes Collateral Documents or with regard to the Collateral. (c) The Second Priority 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 Second Priority Collateral Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Second Priority 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 Second Priority Collateral Agent and any such sub-agent. (e) A resignation or removal of the Second Priority Collateral Agent and appointment of a successor Second Priority Collateral Agent shall become effective only upon the successor Second Priority Collateral Agent’s acceptance of appointment as provided in this Section. (i) The Second Priority 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 Second Priority Collateral Agent by so notifying the Second Priority Collateral Agent and the Issuer in writing. The Issuer may remove the Second Priority Collateral Agent if: (1) the Second Priority 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 Second Priority Collateral Agent is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Second Priority Collateral Agent under any Bankruptcy Law; (3) a custodian or public officer takes charge of the Second Priority Collateral Agent or its property; or (4) the Second Priority Collateral Agent becomes incapable of acting. (ii) If the Second Priority Collateral Agent resigns or is removed or if a vacancy exists in the office of Second Priority Collateral Agent for any reason, the Issuer shall promptly appoint a successor Second Priority Collateral Agent. Within one year after the successor Second Priority Collateral Agent takes office, the Holders of a majority in principal amount of the then outstanding Notes may appoint a successor Second Priority Collateral Agent to replace the successor Second Priority Collateral Agent appointed by the Issuer. (iii) If a successor Second Priority Collateral Agent does not take office within 60 days after the retiring Second Priority Collateral Agent resigns or is removed, the retiring Second Priority Collateral Agent, the Issuer, or the Holders of Notes of at least 10% in principal amount of the then outstanding Notes or the Second Priority Collateral Agent may petition any court of competent jurisdiction for the appointment of a successor Second Priority Collateral Agent. (iv) If the Second Priority 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 Second Priority Collateral Agent and the appointment of a successor Second Priority Collateral Agent. (v) A successor Second Priority Collateral Agent shall deliver a written acceptance of its appointment to the retiring Second Priority Collateral Agent and to the Issuer. Thereupon, the resignation or removal of the retiring Second Priority Collateral Agent shall become effective, and the successor Second Priority Collateral Agent shall have all the rights, powers and duties of the Second Priority Collateral Agent under this Indenture. The successor Second Priority Collateral Agent shall mail a notice of its succession to Holders of the Notes. The retiring Second Priority Collateral Agent shall promptly transfer all Collateral held by it as Second Priority Collateral Agent to the successor Second Priority Collateral Agent, provided that all sums owing to the Second Priority Collateral Agent hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Second Priority Collateral Agent pursuant to this Section 13.05(e), the Issuer’s obligations under Section 7.07 hereof shall continue for the benefit of the retiring Second Priority Collateral Agent. (f) Each Holder, by its acceptance of the Notes, shall be deemed to have consented and agreed to the terms of each Notes Collateral Document, as originally in effect and as amended, supplemented or replaced from time to time in accordance with its terms or the terms of this Indenture; and authorizes and empowers the Trustee and the Second Priority 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 to perform its obligations and exercise its rights and powers thereunder. (g) Except as contemplated by the Notes Collateral Documents, neither the Trustee nor the Second Priority Collateral Agent shall be responsible (1) for the existence, genuineness or value of any of 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.

Second-Priority Collateral Agent. (a) By accepting a Note, The Second-Priority Trustee and each Holder thereof shall be deemed to have irrevocably appointed U.S. Bank National Association (of the Holders by acceptance of the Second-Priority Notes hereby designates and its successors) to act on its behalf as appoints the Second Second-Priority Collateral Agent as its agent under this Second-Priority Indenture, the Second-Priority Security Agreement and the Second-Priority Security Documents and the Second-Priority Trustee and each of the Holders by acceptance of the Second-Priority Notes Collateral Documents and authorized hereby irrevocably authorizes the Second Second-Priority Collateral Agent to (i) take such actions action on its behalf under the provisions of this Second-Priority Indenture, the Second-Priority Security Agreement and the Second-Priority Security Documents and to exercise the rights such powers and powers that perform such duties as are expressly delegated to it the Second-Priority Collateral Agent by the terms of this Second-Priority Indenture, the Notes Collateral Documents or other documents to which it is a partySecond-Priority Security Agreement and the Second-Priority Security Documents, together with any other such powers as are reasonably incidental rights and powers and (ii) execute each document expressed or permitted to be executed by the Second thereto. The Second-Priority Collateral Agent agrees to act as such on its behalfthe express conditions contained in this Section 1410. The provisions of this Section 1410 are solely for the benefit of the Second-Priority Collateral Agent and none of the Second-Priority Trustee, any of the Holders may not, individually nor the Issuers or collectively, take any direct action to enforce of the Subsidiary Guarantors shall have any rights in their favor under the Notes Collateral Documents. The Holders as a third party beneficiary of any of the Notes may only act through instruction provisions contained herein other than as expressly provided in Section 1403. Notwithstanding any provision to the Trusteecontrary contained elsewhere in this Second-Priority Indenture, whichthe Second-Priority Security Agreement and the Second-Priority Security Documents, in turn, shall instruct the Second Priority Collateral Agent. The Second Second-Priority Collateral Agent shall not have no any duties or obligations responsibilities, except those expressly set forth in herein, nor shall the Notes Collateral Documents to which it is party. The Second Second-Priority Collateral Agent have or be deemed to have any fiduciary relationship with the Second-Priority Trustee, any Holder or the Issuers or any Subsidiary Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall not be liable for any action taken read into this Second-Priority Indenture, the Security Agreement and the Second-Priority Security Documents or not taken by it in otherwise exist against the absence of its own gross negligence or willful misconduct. The Second Second-Priority 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 Second Priority 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 Second Priority 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 expertsAgent. Without limiting the generality of the foregoingforegoing sentence, the Second Priority 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 discretionary rights and powers expressly contemplated hereby or by the Notes Collateral Documents that the Second Priority Collateral Agent is required to exercise; provided that the Second Priority Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Second Priority 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 Second Priority Collateral Agent or any of its Affiliates in any capacity; (iv) shall not be liable for any action taken or not taken by it (a) with the consent or at the request of the Trustee 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. The Second Priority Collateral Agent shall be deemed not to have knowledge of any event of default under any First Priority Obligations unless and until written notice describing such event of default is given to the Second Priority Collateral Agent by the First Priority Collateral Agent or the Issuer; and (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 Second Priority Collateral Agent. The use of the term “agent” herein in this Second-Priority Indenture with reference to the Second Second-Priority 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 law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. Except as expressly otherwise provided in Section 9this Second-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) Without limiting the Intercreditor Agreements, the Second Priority Collateral Agent 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 in accordance with this Indenture, the Intercreditor Agreements and the other Notes Collateral Documents. Except as directed by the Trustee and/or other Agents, as applicable, and as expressly required by this Indenture, the Intercreditor Agreements and the other Notes Collateral Documents, and in each case subject to the Intercreditor Agreements, the Second Priority Collateral Agent shall 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 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, the Guarantees or the Notes Collateral Documents or with regard to the Collateral. (c) The Second Priority Collateral Agent is authorized and empowered to appoint one or more coSecond-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 Second Priority Collateral Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Second Priority 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 Second Priority Collateral Agent and any such sub-agent. (e) A resignation or removal of the Second Priority Collateral Agent and appointment of a successor Second Priority Collateral Agent shall become effective only upon the successor Second Priority Collateral Agent’s acceptance of appointment as provided in this Section. (i) The Second Priority 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 Second Priority Collateral Agent by so notifying the Second Priority Collateral Agent and the Issuer in writing. The Issuer may remove the Second Priority Collateral Agent if: (1) the Second Priority 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 Second Priority Collateral Agent is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Second Priority Collateral Agent under any Bankruptcy Law; (3) a custodian or public officer takes charge of the Second Priority Collateral Agent or its property; or (4) the Second Priority Collateral Agent becomes incapable of acting. (ii) If the Second Priority Collateral Agent resigns or is removed or if a vacancy exists in the office of Second Priority Collateral Agent for any reason, the Issuer shall promptly appoint a successor Second Priority Collateral Agent. Within one year after the successor Second Priority Collateral Agent takes office, the Holders of a majority in principal amount of the then outstanding Notes may appoint a successor Second Priority Collateral Agent to replace the successor Second Priority Collateral Agent appointed by the Issuer. (iii) If a successor Second Priority Collateral Agent does not take office within 60 days after the retiring Second Priority Collateral Agent resigns or is removed, the retiring Second Priority Collateral Agent, the Issuer, or the Holders of Notes of at least 10% in principal amount of the then outstanding Notes or the Second Priority Collateral Agent may petition any court of competent jurisdiction for the appointment of a successor Second Priority Collateral Agent. (iv) If the Second Priority 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 Second Priority Collateral Agent and the appointment of a successor Second Priority Collateral Agent. (v) A successor Second Priority Collateral Agent shall deliver a written acceptance of its appointment to the retiring Second Priority Collateral Agent and to the Issuer. Thereupon, the resignation or removal of the retiring Second Priority Collateral Agent shall become effective, and the successor Second Priority Collateral Agent shall have all and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the rights, powers and duties of the Second Second-Priority Collateral Agent is expressly entitled to take or assert under this Second-Priority Indenture. The successor Second , the Second-Priority Collateral Agent shall mail a notice Security Agreement and the Second-Priority Security Documents, including the exercise of its succession to Holders of the Notes. The retiring Second Priority Collateral Agent shall promptly transfer all Collateral held by it as Second Priority Collateral Agent to the successor Second Priority Collateral Agent, provided that all sums owing to the Second Priority Collateral Agent hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Second Priority Collateral Agent remedies pursuant to this Section 13.05(e)Article Five, the Issuer’s obligations under Section 7.07 hereof shall continue for the benefit of the retiring Second Priority Collateral Agent. (f) Each Holder, by its acceptance of the Notes, and any action so taken or not taken shall be deemed consented to have consented and agreed to by the terms of each Notes Collateral Document, as originally in effect and as amended, supplemented or replaced from time to time in accordance with its terms or the terms of this Indenture; and authorizes and empowers the Second-Priority Trustee and the Second Priority 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 to perform its obligations and exercise its rights and powers thereunderHolders. (g) Except as contemplated by the Notes Collateral Documents, neither the Trustee nor the Second Priority Collateral Agent shall be responsible (1) for the existence, genuineness or value of any of 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.