Appointment of Collateral Agent. (a) Notwithstanding any other provisions of this Agreement, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any Collateral may at the time be located and for purposes of enforcement, the Collateral Agent shall have the power and may execute and deliver all instruments to appoint one or more Persons to act as its agent of the Secured Parties of all or any part of the Collateral, and to vest in such Person or Persons, in such capacity and for the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereof, and such powers, duties, obligations, rights and trusts as the Collateral Agent may consider necessary or desirable, provided that the appointment of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant to this Agreement. (b) All rights and powers, conferred or imposed upon the Collateral Agent may be conferred or imposed upon and may be exercised or performed by an agent. (c) Any notice, request or other writing given to the Collateral Agent shall be deemed to have been given to each of the agents as effectively as if given to each of them. Every instrument appointing any agents shall refer to this Agreement. (d) Any agent may at any time appoint the Collateral Agent as its agent or attorney in fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. (e) The Collateral Agent shall not be responsible for any willful misconduct or negligence on the part of any agent appointed with due care and in good faith pursuant to this Section.
Appears in 3 contracts
Samples: Senior Export and Working Capital Facility Agreement (Gerdau Ameristeel Corp), Export Prepayment Facility Agreement (Votorantim Pulp & Paper Inc), Senior Export and Working Capital Facility Agreement (Gerdau Ameristeel Corp)
Appointment of Collateral Agent. (a) Notwithstanding Each Person comprising “Lessor” hereunder hereby irrevocably appoints HCP (the “Collateral Agent”) as the collateral agent hereunder and under all other documents related hereto and authorizes Collateral Agent in such capacity, to take such actions on its behalf and to exercise such powers as are delegated to Collateral Agent in such capacity by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. In performing its functions and duties hereunder, Collateral Agent shall act for itself and as agent for each Person comprising “Lessor” hereunder and does not assume and shall not be deemed to have assumed any other obligation towards or relationship of agency or trust with or for Lessee. The provisions of this Agreement, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any Collateral may at the time be located and for purposes of enforcement, the Collateral Agent shall have the power and may execute and deliver all instruments to appoint one or more Persons to act as its agent of the Secured Parties of all or any part of the Collateral, and to vest in such Person or Persons, in such capacity and Section 16.9.2 are solely for the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereofCollateral Agent and each Person comprising “Lessor” hereunder, and such powers, duties, obligations, Lessee shall no rights and trusts as the Collateral Agent may consider necessary or desirable, provided that the appointment a third party beneficiary(ies) of any of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant to this Agreementprovisions.
(b) All rights and powers, conferred or imposed upon the The Collateral Agent may be conferred perform any and all of its duties and exercise its rights and powers hereunder by or imposed upon and may be exercised through any one or performed more sub-agents appointed by an agentthe Collateral Agent.
(c) Any noticeThe Collateral Agent may at any time give notice of its resignation to the Persons comprising “Lessor” hereunder and Lessee. Upon receipt of any such notice of resignation, request or other writing given the Persons comprising “Lessor” hereunder shall have the right to appoint a successor Collateral Agent. If no such successor shall have been so appointed by the Persons comprising “Lessor” hereunder and shall have accepted such appointment within ten (10) days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of each Person comprising “Lessor” hereunder, appoint a successor Collateral Agent; provided that if the Collateral Agent shall notify Lessee and each Person comprising “Lessor” hereunder that no such successor is willing to accept such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (i) the retiring Collateral Agent shall be deemed discharged from its duties and obligations hereunder (except that in the case of any Collateral held by the Collateral Agent on behalf of each Person comprising “Lessor” hereunder, the Collateral Agent may continue to have been given hold such Collateral until such time as a successor Collateral Agent is appointed and such Collateral is assigned to such successor Collateral Agent) and (ii) all payments, communications and determinations provided to be made by, to or through the Collateral Agent shall instead be made by or to each of Person comprising “Lessor” hereunder directly, until such time as the agents as effectively as if given to each of them. Every instrument appointing any agents shall refer to this AgreementPersons comprising “Lessor” hereunder appoint a successor Collateral Agent.
(d) Any agent may at any time appoint Upon the acceptance of a successor’s or replacement’s appointment as Collateral Agent, such successor or replacement shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Collateral Agent as and the retiring Collateral Agent shall be discharged from all of its agent or attorney duties and obligations hereunder. After the retiring Collateral Agent’s resignation hereunder, the provisions of this Section 16.9.2 shall continue in fact with full power effect for the benefit of such retiring Collateral Agent and authority, to the extent not prohibited by law, to do any lawful act under or its sub-agents in respect of this Agreement on its behalf and in its name.
(e) The any actions taken or omitted to be taken by any of them while the retiring Collateral Agent shall not be responsible for any willful misconduct or negligence on the part of any agent appointed with due care and was acting in good faith pursuant to this Sectionsuch capacity.
Appears in 2 contracts
Samples: Master Lease and Security Agreement (Hcp, Inc.), Master Lease and Security Agreement (Hcp, Inc.)
Appointment of Collateral Agent. (a) Notwithstanding Each Person comprising “Lessor” hereunder hereby irrevocably appoints HCP (the “Collateral Agent”) as the collateral agent hereunder and under all other documents related hereto and authorizes Collateral Agent in such capacity, to take such actions on its behalf and to exercise such powers as are delegated to Collateral Agent in such capacity by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. In performing its functions and duties hereunder, Collateral Agent shall act for itself and as agent for each Person comprising “Lessor” hereunder and does not assume and shall not be deemed to have assumed any other obligation towards or relationship of agency or trust with or for Lessee. The provisions of this Agreement, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any Collateral may at the time be located and for purposes of enforcement, the Collateral Agent shall have the power and may execute and deliver all instruments to appoint one or more Persons to act as its agent of the Secured Parties of all or any part of the Collateral, and to vest in such Person or Persons, in such capacity and Section 16.9.2 are solely for the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereofCollateral Agent and each Person comprising “Lessor” hereunder, and such powers, duties, obligations, Lessee shall have no rights and trusts as the Collateral Agent may consider necessary or desirable, provided that the appointment a third party beneficiary(ies) of any of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant to this Agreementprovisions.
(b) All rights and powers, conferred or imposed upon the The Collateral Agent may be conferred perform any and all of its duties and exercise its rights and powers hereunder by or imposed upon and may be exercised through any one or performed more sub-agents appointed by an agentthe Collateral Agent.
(c) Any noticeThe Collateral Agent may at any time give notice of its resignation to the Persons comprising “Lessor” hereunder and Lessee. Upon receipt of any such notice of resignation, request or other writing given the Persons comprising “Lessor” hereunder shall have the right to appoint a successor Collateral Agent. If no such successor shall have been so appointed by the Persons comprising “Lessor” hereunder and shall have accepted such appointment within ten (10) days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of each Person comprising “Lessor” hereunder, appoint a successor Collateral Agent; provided that if the Collateral Agent shall notify Lessee and each Person comprising “Lessor” hereunder that no such successor is willing to accept such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (i) the retiring Collateral Agent shall be deemed discharged from its duties and obligations hereunder (except that in the case of any Collateral held by the Collateral Agent on behalf of each Person comprising “Lessor” hereunder, the Collateral Agent may continue to have been given hold such Collateral until such time as a successor Collateral Agent is appointed and such Collateral is assigned to such successor Collateral Agent) and (ii) all payments, communications and determinations provided to be made by, to or through the Collateral Agent shall instead be made by or to each of Person comprising “Lessor” hereunder directly, until such time as the agents as effectively as if given to each of them. Every instrument appointing any agents shall refer to this AgreementPersons comprising “Lessor” hereunder appoint a successor Collateral Agent.
(d) Any agent may at any time appoint Upon the acceptance of a successor’s or replacement’s appointment as Collateral Agent, such successor or replacement shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Collateral Agent as and the retiring Collateral Agent shall be discharged from all of its agent or attorney duties and obligations hereunder. After the retiring Collateral Agent’s resignation hereunder, the provisions of this Section 16.9.2 shall continue in fact with full power effect for the benefit of such retiring Collateral Agent and authority, to the extent not prohibited by law, to do any lawful act under or its sub-agents in respect of this Agreement on its behalf and in its name.
(e) The any actions taken or omitted to be taken by any of them while the retiring Collateral Agent shall not be responsible for any willful misconduct or negligence on the part of any agent appointed with due care and was acting in good faith pursuant to this Sectionsuch capacity.
Appears in 2 contracts
Samples: Master Lease and Security Agreement (Emeritus Corp\wa\), Master Lease and Security Agreement (Hcp, Inc.)
Appointment of Collateral Agent. (a) Notwithstanding any other provisions of this Agreement, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any Collateral may at the time be located and for purposes of enforcement, the either Collateral Agent shall have the power and may execute and deliver all instruments to appoint one (1) or more Persons to act as its agent of the Secured Parties Lenders of all or any part of the relevant Collateral, and to vest in such Person or Persons, in such capacity and for the benefit or on behalf of the Secured PartiesLenders, such title to the Collateral, or any part thereof, and such powers, duties, obligations, rights and trusts as the such Collateral Agent may consider necessary or desirable, provided that the appointment of such agent shall be subject to the approval of the Administrative AgentMajority Lenders, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties Lenders to the extent the such Collateral Agent is so liable pursuant to this Agreement.
(b) All rights and powers, conferred or imposed upon the either Collateral Agent may be conferred or imposed upon and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to the either Collateral Agent shall be deemed to have been given to each of the agents of such Collateral Agent as effectively as if given to each of themsuch agent. Every instrument appointing any agents shall refer to this Agreement.
(d) Any agent of either Collateral Agent may at any time appoint the such Collateral Agent as its agent or attorney in fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name.
(e) The Neither Collateral Agent shall not be responsible for any willful misconduct or negligence on the part of any agent appointed by such Collateral Agent with due care and in good faith pursuant to this Section.
Appears in 2 contracts
Samples: Export Prepayment Facility Agreement and Secured Loan (Fibria Celulose S.A.), Export Prepayment Facility Agreement and Secured Loan (Votorantim Pulp & Paper Inc)
Appointment of Collateral Agent. (a) Notwithstanding The Lender and the Options Office hereby irrevocably appoint and authorize the Collateral Agent to take such action on their behalf and to exercise such powers under this Agreement as are delegated to the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental thereto.
(b) The Secured Parties (other than the Collateral Agent) shall indemnify the Collateral Agent (to the extent not reimbursed by the Pledgor) against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent’s gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with any action taken or omitted by the Collateral Agent hereunder.
(c) So long as any Option Loans are outstanding, the Collateral Agent shall follow the instructions of the Lender with respect to the Collateral. The Collateral Agent may consult with legal counsel, independent public accountants and other provisions experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents, or employees shall be liable for any action taken or not taken by it in connection with this AgreementAgreement with the consent or at the request of the Secured Parties (other than the Collateral Agent) or in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur any liability by acting in reliance upon any notice, at consent, certificate, statement, or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or parties.
(e) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business and assets as a whole or substantially as a whole, or any timecorporation or association resulting from any such conversion, for sale, merger, consolidation or transfer to which it is a party, shall, subject to the purpose prior written consent of meeting any legal requirement the Secured Parties, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any jurisdiction instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
(f) Beyond the exercise of reasonable care in which any Collateral may at the time be located and for purposes of enforcementcustody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the power and may execute and deliver all instruments to appoint one possession or more Persons to act as its agent control of the Secured Parties of all any agent, bailee, clearing corporation or securities intermediary or any part of the Collateral, and to vest in such Person income thereon or Persons, in such capacity and for the benefit or on behalf of the Secured Parties, such title as to the Collateral, preservation of rights against prior parties or any part thereof, and such powers, duties, obligations, other rights and trusts as the Collateral Agent may consider necessary or desirable, provided that the appointment of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant to this Agreement.
(b) All rights and powers, conferred or imposed upon the Collateral Agent may be conferred or imposed upon and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to the pertaining thereto. The Collateral Agent shall be deemed to have been given to each exercised reasonable care in the custody and preservation of the agents as effectively as Collateral if given the Collateral is accorded treatment substantially equal to each that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of them. Every instrument appointing the Collateral, or for any agents shall refer to this Agreement.
(d) Any agent may at diminution in the value thereof, by reason of the act or omission of any time appoint agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent as its agent or attorney in fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name.
(e) The Collateral Agent shall not be responsible for any willful misconduct or negligence on the part of any agent appointed with due care and in good faith pursuant to this Section(or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent).
Appears in 2 contracts
Samples: Pledge and Security Agreement (Erbey William C), Pledge and Security Agreement (Ricketts J Joe)
Appointment of Collateral Agent. Purchaser hereby (a) Notwithstanding any other provisions of this Agreementappoints the Collateral Agent, at any timeas the collateral agent hereunder, for the purpose of meeting any legal requirement of any jurisdiction in which any Collateral may at the time be located and for purposes of enforcement, (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Purchaser’s behalf in accordance with the terms hereof. The Collateral Agent shall not have, by reason hereof, a fiduciary relationship in respect of any Purchaser. Neither the Collateral Agent nor any of its officers, directors, employees or agents shall have any liability to any Purchaser for any action taken or omitted to be taken in connection hereof except to the power and may execute and deliver all instruments to appoint one extent caused by its own gross negligence or more Persons to act as its agent of the Secured Parties of all or any part of the Collateralwillful misconduct, and Purchaser agrees to vest in such Person or Personsdefend, in such capacity protect, indemnify and for hold harmless the benefit or on behalf Collateral Agent and all of its officers, directors, employees and agents (collectively, the Secured Parties“Collateral Agent Indemnitees”) from and against any losses, such title to the Collateraldamages, or any part thereof, and such powers, dutiesliabilities, obligations, rights penalties, actions, judgments, suits, fees, costs and trusts as the expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent may consider necessary Indemnitee, whether direct, indirect or desirableconsequential, provided that arising from or in connection with the appointment of performance by such agent shall be subject to the approval Collateral Agent Indemnitee of the Administrative Agent, which approval shall not be unreasonably withheld, duties and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the obligations of Collateral Agent is so liable pursuant to this Agreement.
(b) All rights and powers, conferred or imposed upon the Collateral Agent may be conferred or imposed upon and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to the Collateral Agent shall be deemed to have been given to each of the agents as effectively as if given to each of themhereto. Every instrument appointing any agents shall refer to this Agreement.
(d) Any agent may at any time appoint the Collateral Agent as its agent or attorney in fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name.
(e) The Collateral Agent shall not be responsible for required to exercise any willful misconduct discretion or negligence on take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the part instructions of the Purchaser,; provided, however, that the Collateral Agent shall not be required to take any agent appointed with due care and action which, in the reasonable opinion of the Collateral Agent, exposes the Collateral Agent to liability or which is contrary to this Agreement or applicable law. The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith pursuant to be genuine and correct and to have been signed, sent or made by the proper Person (as defined in the Purchase Agreement), and with respect to all matters pertaining to this SectionAgreement and its duties hereunder or thereunder, upon advice of counsel selected by it.
Appears in 2 contracts
Samples: Security Agreement (World Moto, Inc.), Security Agreement (World Moto, Inc.)
Appointment of Collateral Agent. Each Purchaser hereby (a) Notwithstanding any other provisions of this Agreementappoints the Collateral Agent, at any timeas the collateral agent hereunder, for the purpose of meeting any legal requirement of any jurisdiction in which any Collateral may at the time be located and for purposes of enforcement, (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to take such action on such Purchaser’s behalf in accordance with the terms hereof. The Collateral Agent shall not have, by reason hereof, a fiduciary relationship in respect of any Purchaser. Neither the Collateral Agent nor any of its officers, directors, employees or agents shall have any liability to any Purchaser for any action taken or omitted to be taken in connection hereof except to the power and may execute and deliver all instruments to appoint one extent caused by its own gross negligence or more Persons to act as its agent of the Secured Parties of all or any part of the Collateralwillful misconduct, and each Purchaser agrees to vest in such Person or Personsdefend, in such capacity protect, indemnify and for hold harmless the benefit or on behalf Collateral Agent and all of its officers, directors, employees and agents (collectively, the Secured Parties“Collateral Agent Indemnitees”) from and against any losses, such title to the Collateraldamages, or any part thereof, and such powers, dutiesliabilities, obligations, rights penalties, actions, judgments, suits, fees, costs and trusts as the expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent may consider necessary Indemnitee, whether direct, indirect or desirableconsequential, provided that arising from or in connection with the appointment of performance by such agent shall be subject to the approval Collateral Agent Indemnitee of the Administrative Agent, which approval shall not be unreasonably withheld, duties and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the obligations of Collateral Agent is so liable pursuant to this Agreement.
(b) All rights and powers, conferred or imposed upon the Collateral Agent may be conferred or imposed upon and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to the Collateral Agent shall be deemed to have been given to each of the agents as effectively as if given to each of themhereto. Every instrument appointing any agents shall refer to this Agreement.
(d) Any agent may at any time appoint the Collateral Agent as its agent or attorney in fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name.
(e) The Collateral Agent shall not be responsible for required to exercise any willful misconduct discretion or negligence on take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the part instructions of the holders of a majority in aggregate principal amount of the Debentures (the “Required Holders”), and such instructions shall be binding upon all holders of Debentures; provided, however, that the Collateral Agent shall not be required to take any agent appointed with due care and action which, in the reasonable opinion of the Collateral Agent, exposes the Collateral Agent to liability or which is contrary to this Agreement or applicable law. The Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith pursuant to be genuine and correct and to have been signed, sent or made by the proper Person (as defined in the Purchase Agreement), and with respect to all matters pertaining to this SectionAgreement and its duties hereunder or thereunder, upon advice of counsel selected by it.
Appears in 2 contracts
Samples: Security Agreement (World Moto, Inc.), Security Agreement (World Moto, Inc.)
Appointment of Collateral Agent. (a) Notwithstanding Clearlake is hereby appointed to act on behalf of the Secured Parties as Collateral Agent under this Agreement and the other Financing Documents. In performing its functions and duties under this Agreement and the other Financing Documents, and notwithstanding the use of the term “agent” or “Agent” in any other provisions of this Agreement, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any Collateral may at the time be located and for purposes of enforcementcapacity, the Collateral Agent shall have the power and may execute and deliver all instruments to appoint one no duties or more Persons responsibilities except to act as its agent in accordance with the instructions of the Secured Parties of all or any part of the CollateralRequired Holders, and to vest in such Person or Persons, in such capacity does not assume and for the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereof, and such powers, duties, obligations, rights and trusts as the Collateral Agent may consider necessary or desirable, provided that the appointment of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withhelddeemed to have assumed any obligation toward or relationship of agency or trust with or for any individual Tranche B Purchaser. Furthermore, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant to this Agreement.
(b) All rights and powers, conferred or imposed upon the Collateral Agent may be conferred or imposed upon and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to duties of the Collateral Agent shall be mechanical and administrative in nature and the Collateral Agent shall not have, or be deemed to have, by reason of this Agreement, any other Financing Document or otherwise, a fiduciary relationship in respect of any individual Tranche B Purchaser. The Collateral Agent shall have been given no duty to each disclose, and shall not be liable for failure to disclose, any information relating to any Credit Party or any of their respective Subsidiaries or any Account Debtor that is communicated to or obtained by the Collateral Agent or any of the agents Collateral Agent’s Affiliates in any capacity. Any other appointment or collateral agency agreement between the Collateral Agent and any Purchaser or any of their respective Affiliates, if any, is hereby terminated and shall be superseded by this Section. The provisions of this Section 22.1 are solely for the benefit of the Collateral Agent and Purchasers and no Credit Party nor any other Person shall have any rights as effectively as a third party beneficiary of any of the provisions hereof. The Collateral Agent shall be entitled to refrain from any act or action (including failure to act) in connection with this Agreement or any other Financing Document until the Collateral Agent shall have received instructions from the Required Holders, and the Collateral Agent shall not incur liability to any Person by reason of so refraining. The Collateral Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Financing Document (a) if given such action would, in the opinion of the Collateral Agent, be contrary to each law or the terms of themthis Agreement or any other Financing Document, (b) if such action would, in the opinion of the Collateral Agent, expose the Collateral Agent to environmental or other liabilities or (c) if the Collateral Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Every instrument appointing Without limiting the foregoing, no Purchaser shall have any agents shall refer to this Agreement.
(d) Any agent may at any time appoint right of action whatsoever against the Collateral Agent as its agent a result of the Collateral Agent’s acting or attorney refraining from acting hereunder or under any other Financing Document in fact accordance with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect instructions of this Agreement on its behalf and in its namethe Required Holders.
(e) The Collateral Agent shall not be responsible for any willful misconduct or negligence on the part of any agent appointed with due care and in good faith pursuant to this Section.
Appears in 1 contract
Samples: Senior Subordinated Note Purchase Agreement (International Textile Group Inc)
Appointment of Collateral Agent. (a) Notwithstanding any other provisions of this Agreement, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any Collateral may at the time be located and for purposes of enforcement, the Collateral Agent shall have the power and may execute and deliver all instruments to appoint one or more Persons to act as its agent of the Each Secured Parties of all or any part of the Collateral, and to vest in such Person or Persons, in such capacity and for the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereof, and such powers, duties, obligations, rights and trusts as the Collateral Agent may consider necessary or desirable, provided that the appointment of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant to this Agreement.
(b) All rights and powers, conferred or imposed upon the Collateral Agent may be conferred or imposed upon and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to the Collateral Agent shall be deemed to have been given to each of the agents as effectively as if given to each of them. Every instrument appointing any agents shall refer to this Agreement.
(d) Any agent may at any time appoint Party hereby irrevocably appoints the Collateral Agent as its agent or attorney in fact with full power and authority, authorizes the Collateral Agent to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto.
(b) The bank serving as the Collateral Agent hereunder shall have the same rights and powers in its namecapacity as a Secured Party as any other Secured Party and may exercise the same as though it were not the Collateral Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Holdings or any of its Subsidiaries as if it were not the Collateral Agent hereunder.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Collateral Agent is required to exercise in writing as directed by the Required Secured Parties (or such other number or percentage of the Secured Parties as shall be necessary under the circumstances as provided in Section 8.1), and (c) except as expressly set forth herein, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings or any of its Subsidiaries that is communicated to or obtained by the bank serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Secured Parties (or such other number or percentage of the Secured Parties as shall be necessary under the circumstances as provided in Section 8.1) or in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Collateral Agent by HCC or a Secured Party, and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document.
(d) The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for HCC), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(e) The Collateral Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Collateral Agent. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Affiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Affiliates of the Collateral Agent and any such sub-agent in connection with its activities as Collateral Agent.
(f) Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any time by notifying the Secured Parties and HCC. Upon any such resignation, the Required Secured Parties shall have the right, to appoint a successor, which successor shall be subject to the approval of HCC (such approval not to be unreasonably withheld or delayed). If no successor shall have been so appointed by the Required Secured Parties and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Secured Parties, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank, which successor shall be subject to the approval of HCC (such approval not to be unreasonably withheld or delayed). Upon the acceptance of its appointment as Collateral Agent hereunder by a successor and the approval of HCC as required above, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. After the Collateral Agent's resignation hereunder, the provisions of this Article and Section 7.5 hereof shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Affiliates in respect of any actions taken or omitted to be taken by any of them while it was acting as Collateral Agent.
(g) Each Secured Party acknowledges that it has, independently and without reliance upon the Collateral Agent or any other Secured Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Secured Party also acknowledges that it will, independently and without reliance upon the Collateral Agent or any other Secured Party and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder.
(h) Each Secured Party, by accepting the benefits of this Agreement, agrees to indemnify the Collateral Agent in its capacity as such (to the extent not reimbursed by HCC, or the other Grantors and without limiting the obligation of HCC and each other Grantor to do so), ratably according to the respective amounts of the Secured Obligations owed to such Secured Party, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time (including, without limitation, at any time following the payment of the Secured Obligations) be imposed on, incurred by or asserted against the Collateral Agent in any way relating to or arising out of this Agreement, any of the other Transaction Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Collateral Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the Collateral Agent's gross negligence or willful misconduct. The agreements in this paragraph shall survive the payment of the Secured Obligations and all other amounts payable hereunder. No Secured Party shall be entitled to the benefits of this Agreement if it has failed to confirm in writing (in form and substance satisfactory to the Collateral Agent) that it is bound by and subject to the provisions of this Section 7.5 following a request to do so by the Collateral Agent. Any Secured Party which fails to provide such a confirmation shall not be responsible for any willful misconduct or negligence on the part of any agent appointed entitled to vote with due care and in good faith pursuant respect to matters relating to this SectionAgreement or the Collateral or to share in any distribution of, or payments or distributions in respect of, the Collateral.
(i) The Collateral Agent shall be entitled to and succeed to all rights of the Administrative Agent under the Original Guarantee and Collateral Agreement and all liens created under the Original Guarantee and Collateral Agreement shall continue in full force and effect hereunder without interruption in perfection or priority.
Appears in 1 contract
Samples: Guarantee and Collateral Agreement (Hanover Compressor Co /)
Appointment of Collateral Agent. (a) Notwithstanding any other provisions The Agent and each Lender hereby designates STBA as Collateral Agent and hereby authorizes the Collateral Agent to enter into each of this the Security Documents substantially in the form attached hereto and to the Letter of Credit Agreement, at any time, and to take all action contemplated thereby. All rights and remedies under the Security Documents may be exercised by the Collateral Agent for the purpose benefit of meeting the Agent and the Lenders and the other beneficiaries thereof upon the terms thereof. The Agent and the Lenders further agree that the Collateral Agent may assign its rights and obligations as Collateral Agent under any legal requirement of the Security Documents to any affiliate of the Collateral Agent or to any trustee, which assignee in each such case shall (subject to compliance with any requirements of applicable law governing the assignment of such Security Documents) be entitled to all the rights of the Collateral Agent under and with respect to the applicable Security Document.
(b) In each circumstance where, under any provision of any jurisdiction in which any Collateral may at the time be located and for purposes of enforcementSecurity Document, the Collateral Agent shall have the power and may execute and deliver all instruments right to appoint one grant or more Persons to act as its agent of the Secured Parties of all withhold any consent, exercise any remedy, make any determination or direct any part of the Collateral, and to vest in such Person or Persons, in such capacity and for the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereof, and such powers, duties, obligations, rights and trusts as action by the Collateral Agent may consider necessary or desirableunder such Security Document, provided that the appointment Collateral Agent shall act in respect of such agent consent, exercise of remedies, determination or action, as the case may be, with the consent of and at the direction of the Required Lenders; provided, however, that no such consent of the Required Lenders shall be subject required with respect to any consent, determination or other matter that is, in the approval of the Administrative Collateral Agent's judgment, which approval shall not be unreasonably withheldministerial or administrative in nature; provided, and provided further, that any such agent in no event shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable be required, and in all cases shall be fully justified in failing or refusing, to take any action under or pursuant to this Agreement.
(b) All rights and powersany Security Document which, conferred or imposed upon in the reasonable opinion of the Collateral Agent may Agent, (a) would be conferred contrary to the terms of any Security Document or imposed upon would subject it or its officers, employees, or directors to liability, unless and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to until the Collateral Agent shall be deemed indemnified or tendered security to have been given its satisfaction by the Lenders against any and all loss, cost, expense or liability in connection therewith, or (b) would be contrary to law, in each case anything herein or elsewhere contained to the contrary notwithstanding. In each circumstance where any consent of or direction from the agents as effectively as if given to each of them. Every instrument appointing any agents shall refer to this Agreement.
(d) Any agent may at any time appoint Required Lenders is required, the Collateral Agent as its agent or attorney in fact with full power and authority, shall send to the extent not prohibited by law, Lenders a notice setting forth a description in reasonable detail of the matter as to do any lawful act under which consent or in direction is requested and the Collateral Agent's proposed course of action with respect of this Agreement on its behalf and in its name.
(e) The thereto. In the event the Collateral Agent shall not have received a response from any Lender within five (5) Business Days after such Lender's receipt of such notice, such Lender shall be responsible for any willful misconduct or negligence on deemed to have agreed to the part course of any agent appointed with due care and in good faith pursuant to this Sectionaction proposed by the Collateral Agent.
Appears in 1 contract
Samples: Credit Agreement (Dyersburg Corp)
Appointment of Collateral Agent. Each Investor hereby agrees that NewWest Mezzanine Fund LP shall act as the initial collateral agent (athe "Collateral Agent") Notwithstanding for Purchaser in connection with the Collateral and all matters relating to any other provisions of this Agreementsecurity interest, at any from time to time, securing the Obligations (including without limitation, the security interest granted under the Security Agreement and the Pledge Agreement), and no Investor shall have any right individually to exercise any rights or remedies with respect to the Collateral. The Collateral Agent shall be fully indemnified by each Investor, on a pro rata basis, for the purpose of meeting any legal requirement liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, tax liabilities, broker's or finder's fees, out-of-pocket costs, expenses and disbursements of any jurisdiction in which any Collateral may at kind or nature whatsoever (including the time be located reasonable fees and disbursements of counsel for purposes of enforcement, the Collateral Agent shall have the power and may execute and deliver all instruments to appoint one in connection with any investigative, administrative or more Persons to act as its agent of the Secured Parties of all judicial proceeding commenced or any part of the Collateralthreatened, and to vest in such Person whether or Persons, in such capacity and for the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereof, and such powers, duties, obligations, rights and trusts as the Collateral Agent may consider necessary or desirable, provided that the appointment of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant to this Agreement.
(b) All rights and powers, conferred or imposed upon the Collateral Agent may be conferred or imposed upon and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to the Collateral Agent shall be deemed designated a party thereto) that may be imposed on, incurred by, or asserted against the Collateral Agent, in any manner relating to or arising out of or incurred by the Collateral Agent in connection with the Collateral Agent's actions as the Purchaser's collateral agent, provided, however, that Purchaser shall have been given no obligation to each the Collateral Agent under this Section with respect to liabilities arising from the gross negligence or willful misconduct of the agents Collateral Agent while acting as effectively the collateral agent for Purchaser, as if given determined by a court of competent jurisdiction. To the extent that the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, each Investor shall contribute the maximum portion that such Investor is permitted to pay and satisfy under applicable law to the payment and satisfaction of themall liabilities incurred by the Collateral Agent. Every instrument appointing any agents shall refer to The relationship between the Collateral Agent and Purchaser is that of agent and principal only, and nothing contained in this Agreement.
(d) Any agent may at , any time appoint Financing Document or otherwise shall be construed to constitute the Collateral Agent as its agent a trustee or attorney in fact with full power and authority, to the extent not prohibited by law, to do fiduciary for any lawful act under or in respect of this Agreement on its behalf and in its name.
(e) Investor. The Collateral Agent may resign at any time upon notice to the Investors and the Borrower (in which case the Majority Purchaser shall not be responsible for promptly appoint a replacement), and the Majority Purchaser may replace the Collateral Agent at any willful misconduct or negligence on time upon written notice to the part of any agent appointed with due care Collateral Agent and in good faith pursuant to this Sectionthe Investors.
Appears in 1 contract
Appointment of Collateral Agent. (a) Notwithstanding any other provisions of this Simultaneously herewith, the Administrative Agent is entering into the Collateral Agency Agreement, at any timewhereby the Collateral Agent will be appointed to act on behalf of the Administrative Agent and the Lenders solely with respect to the Collateral. Each Lender hereby authorizes the Administrative Agent, on behalf of and for the purpose benefit of meeting Lenders, to enter into the Collateral Agency Agreement, and each Lender agrees to be bound by the terms of the Collateral Agency Agreement. Upon execution of the Collateral Agency Agreement, (i) each and every right, power, privilege or duty expressed or intended by this Agreement or any legal requirement of any jurisdiction the other Loan Documents to be exercised by or vested in which any or conveyed to the Administrative Agent with respect to the Collateral may at shall be exercisable by and vest in the time be located Collateral Agent to the extent, and for purposes of enforcementonly to the extent, necessary to enable the Collateral Agent to exercise such rights, powers and privileges with respect to such Collateral and to perform such duties with respect to such Collateral, and every covenant and obligation contained in the Loan Documents and necessary to the exercise or performance thereof by the Collateral Agent shall have run to and be enforceable by either the power and may execute and deliver all instruments to appoint one Administrative Agent or more Persons to act as its agent of the Secured Parties of all or any part of the CollateralCollateral Agent, and (ii) the provisions of this Section 9 and of subsections 10.2 and 10.3 that refer to vest in such Person or Persons, in such capacity and for the Administrative Agent shall inure to the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereof, and such powers, duties, obligations, rights and trusts as the Collateral Agent may consider necessary or desirable, provided that the appointment of such agent shall be subject and all references therein to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant to this Agreement.
(b) All rights and powers, conferred or imposed upon the Collateral Agent may be conferred or imposed upon and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to the Collateral Agent shall be deemed to have been given be references to each of the agents Administrative Agent and/or the Collateral Agent, as effectively as if given to each of themthe context may require. Every Should any instrument appointing in writing from the Borrower or any agents shall refer to this Agreement.
(d) Any agent may at any time appoint other Loan Party be required by the Collateral Agent as its agent for more fully and certainly vesting in and confirming to it such rights, powers, privileges and duties, the Borrower shall, or attorney in fact with full power shall cause such Loan Party to, execute, acknowledge and authoritydeliver any and all such instruments promptly upon request by such Collateral Agent or the Administrative Agent. In case any Collateral Agent, or a successor thereto, shall resign or be removed, all the rights, powers, privileges and duties of such Collateral Agent, to the extent not prohibited permitted by law, to do any lawful act under or shall vest in respect and be exercised by the Administrative Agent until the appointment of this Agreement on its behalf and in its namea new Collateral Agent.
(e) The Collateral Agent shall not be responsible for any willful misconduct or negligence on the part of any agent appointed with due care and in good faith pursuant to this Section.
Appears in 1 contract
Appointment of Collateral Agent. (a) Notwithstanding any other provisions Each of this Agreement, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any Collateral may at the time be located Holders hereby designates and for purposes of enforcement, appoints the Collateral Agent shall have as the power and may execute and deliver all instruments to appoint one or more Persons to act as its collateral agent of the Secured Parties of all or any part of the Collateral, and to vest in such Person or Persons, in such capacity and for the benefit or acting on behalf of the Secured Parties, such title Holders with respect to the Collateral, or any part thereof, and such powers, duties, obligations, rights and trusts as the . The Collateral Agent may consider necessary or desirable, provided xxxxxx accepts such appointment on the terms and conditions set forth herein and acknowledges that is shall act as agent in accordance with the appointment terms of such agent shall be subject to the approval this Agreement for and on behalf of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant to this Agreementeach Holder.
(b) All rights Each Holder hereby authorizes and powers, conferred or imposed upon directs the Collateral Agent to (i) execute this Agreement, (ii) exercise such rights and powers under this Agreement as are specifically granted or delegated to the Collateral Agent by the terms hereof, or as it may be conferred or imposed upon reasonably directed in writing by any Holder, and may be exercised or performed by an agent(iii) perform the obligations of the Collateral Agent expressly set forth hereunder.
(c) Any noticeaction taken by the Collateral Agent in accordance with the provisions of this Agreement, request and the exercise by the Collateral Agent of any rights or other writing given remedies set forth herein and therein shall be authorized and binding upon the Holders. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein, nor shall the Collateral Agent have or be deemed to have been given to each any trust or other fiduciary relationship with any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the agents foregoing sentence, the use of the term “agent” in this Agreement with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as effectively as if given a matter of market custom, and is intended to each of them. Every instrument appointing any agents shall refer to this Agreementcreate or reflect only an administrative relationship between independent contracting parties.
(d) Any agent may at any time appoint the The Collateral Agent as may perform any of its agent duties under Agreement by or attorney through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates, (a “Related Person”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in fact with full power and authority, to the extent not prohibited taking action in reliance upon any advice or opinion given by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name.
(e) legal counsel. The Collateral Agent shall not be responsible for any willful the negligence or misconduct or negligence on the part of any agent appointed with due care and receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith faith.
(e) None of the Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the transactions contemplated hereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to the Holders for any recital, statement, representation, warranty, covenant or agreement made by a Grantor contained in this Agreement or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of the Debentures or this Agreement Documents, or for any failure of any Grantor or any other party to this Agreement to perform its obligations hereunder or for the value or sufficiency of any Collateral. None of the Collateral Agent or any of its Related Persons shall be under any obligation to the Holders to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or to inspect the properties, books, or records of any Grantor.
(f) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Agreement unless it shall first receive such advice or concurrence of the Holders of a majority in aggregate principal amount of the Debentures, as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability, loss and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement in accordance with a request, direction, instruction or consent of the Holders of a majority in aggregate principal amount of the Debentures and such request and any action taken or failure to act pursuant thereto shall be binding upon the Holders.
(g) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Event of Default, unless an officer of the Collateral Agent shall have received written notice from any Holder or the Issuer referring to this Agreement, describing such Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Event of Default as may be requested by the Holders of a majority in aggregate principal amount of the Debentures in accordance with this Agreement.
(h) The Collateral Agent may resign at any time by notice to the Holders and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral Agent resigns under this Agreement, the Holders of a majority in aggregate principal amount of the Debentures, with the prior written consent of the Issuer (such consent not to be (i) unreasonable withheld or delayed or (ii) required if an Event of Default has occurred and is continuing), shall appoint a successor Collateral Agent. If no successor Collateral Agent is appointed prior to the intended effective date of the resignation of the Collateral Agent (as stated in the notice of resignation), the Collateral Agent may appoint, after consulting with the Holders, with the prior written consent of the Issuer (such consent not to be (1) unreasonable withheld or delayed or (2) required if an Event of Default has occurred and is continuing), a successor Collateral Agent. If no successor Xxxxxxxxxx Agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation), the Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor Collateral Agent hereunder, such successor Collateral Agent shall succeed to all the rights, powers and duties of the retiring Collateral Agent, and the term “Collateral Agent” shall mean such successor Collateral Agent, and the retiring Collateral Agent’s appointment, powers and duties as the Collateral Agent shall be terminated. After the retiring Collateral Agent’s resignation hereunder, the provisions of this SectionAgreement shall continue to inure to its benefit and the retiring Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Collateral Agent under this Agreement.
Appears in 1 contract
Samples: Guaranty and Security Agreement (Remark Holdings, Inc.)
Appointment of Collateral Agent. (a) Notwithstanding Each party hereto hereby irrevocably designates, appoints and authorizes the Collateral Agent to take such action on their behalf and to exercise such powers under this Agreement as are delegated to the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental thereto.
(b) The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(c) Neither the Collateral Agent nor any of its directors, officers, trust officers, agents or employees shall be liable for any action taken or not taken by it in connection with this Agreement with the consent or at the request of the Secured Parties or in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other provisions writing (which may be a bank wire, telex or similar writing) reasonably believed by it to be genuine or to be signed by the proper party or parties.
(d) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall, subject to the prior written consent of this Agreementthe Secured Parties, at any timebe and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, for discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the purpose of meeting any legal requirement execution or filing of any jurisdiction instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
(e) Beyond the exercise of reasonable care in which any Collateral may at the time be located and for purposes of enforcementcustody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the power and may execute and deliver all instruments possession or control of any agent, bailee, clearing corporation or securities intermediary or in respect of any income on such Collateral or as to appoint one or more Persons to act as its agent the preservation of the Secured Parties of all rights against prior parties or any part of the Collateral, and to vest in such Person or Persons, in such capacity and for the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereof, and such powers, duties, obligations, other rights and trusts as the Collateral Agent may consider necessary or desirable, provided that the appointment of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant to this Agreement.
(b) All rights and powers, conferred or imposed upon the Collateral Agent may be conferred or imposed upon and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to the pertaining thereto. The Collateral Agent shall be deemed to have been given to each exercised reasonable care in the custody and preservation of the agents as effectively as Collateral if given the Collateral is accorded treatment substantially equal to each that which the Collateral Agent accords its own property, and shall not be liable or responsible for any loss or damage to any of them. Every instrument appointing the Collateral, or for any agents shall refer to this Agreementdiminution in the value thereof, by reason of the act or omission of any agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent in good faith (or selected, in good faith, by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent).
(d) Any agent may at any time appoint the Collateral Agent as its agent or attorney in fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name.
(ef) The Collateral Agent may resign as Collateral Agent upon thirty (30) days' written notice thereof to Pledgor, each of the Secured Parties and each other party hereto; PROVIDED that no such resignation shall be effective until a successor Collateral Agent reasonably satisfactory to Pledgor and the Secured Parties has accepted such appointment in writing.
(g) Share Purchaser agrees to indemnify the Collateral Agent and its Affiliates and their respective directors, officers, employees, agents and controlling persons (the Collateral Agent and each such person being an "INDEMNIFIED PARTY") from and against any and all losses, claims, damages and liabilities, joint and several, to which such Indemnified Party may become subject under any applicable federal or state law or otherwise, that arise out of or relate to this Agreement, the transactions contemplated hereby or any action taken or not taken pursuant hereto, and will reimburse any Indemnified Party for all expenses (including reasonable counsel fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense or settlement of any pending or threatened claim or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party and whether or not such claim, action or proceeding is initiated or brought by or on behalf of Share Purchaser. Share Purchaser shall not be responsible for liable under the foregoing indemnification provision to the extent that any loss, claim, damage, liability or expense is found in a nonappealable judgment by a court of competent jurisdiction to have resulted from the Collateral Agent's willful misconduct or negligence on gross negligence. The provisions of this Section 13(g) shall survive any termination of this Agreement or of the part of any agent appointed with due care and in good faith pursuant to this SectionSecurity Interests created hereunder.
Appears in 1 contract
Appointment of Collateral Agent. (a) Notwithstanding any other provisions The Agent and each Lender hereby designates STBA as Collateral Agent and hereby authorizes the Collateral Agent to enter into each of this Agreementthe Security Documents substantially in the form attached hereto, at any time, and to take all action contemplated thereby. All rights and remedies under the Security Documents may be exercised by the Collateral Agent for the purpose benefit of meeting the Agent and the Lenders and the other beneficiaries thereof upon the terms thereof. The Agent and the Lenders further agree that the Collateral Agent may assign its rights and obligations as Collateral Agent under any legal requirement of the Security Documents to any affiliate of the Collateral Agent or to any trustee, which assignee in each such case shall (subject to compliance with any requirements of applicable law governing the assignment of such Security Documents) be entitled to all the rights of the Collateral Agent under and with respect to the applicable Security Document.
(b) In each circumstance where, under any provision of any jurisdiction in which any Collateral may at the time be located and for purposes of enforcementSecurity Document, the Collateral Agent shall have the power and may execute and deliver all instruments right to appoint one grant or more Persons to act as its agent of the Secured Parties of all withhold any consent, exercise any remedy, make any determination or direct any part of the Collateral, and to vest in such Person or Persons, in such capacity and for the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereof, and such powers, duties, obligations, rights and trusts as action by the Collateral Agent may consider necessary or desirableunder such Security Document, provided that the appointment of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant shall act in respect of such consent, exercise of remedies, determination or action, as the case may be, with the consent of and at the direction of the Required Lenders; PROVIDED, HOWEVER, that no such consent of the Required Lenders shall be required with respect to this Agreement.
(b) All rights and powersany consent, conferred determination or imposed upon other matter that is, in the Collateral Agent's judgment, ministerial or administrative in nature; PROVIDED, FURTHER, that in no event shall the Collateral Agent may be conferred required, and in all cases shall be fully justified in failing or imposed upon refusing, to take any action under or pursuant to any Security Document which, in the reasonable opinion of the Collateral Agent, (a) would be contrary to the terms of any Security Document or would subject it or its officers, employees, or directors to liability, unless and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to until the Collateral Agent shall be deemed indemnified or tendered security to have been given its satisfaction by the Lenders against any and all loss, cost, expense or liability in connection therewith, or (b) would be contrary to law, in each case anything herein or elsewhere contained to the contrary notwithstanding. In each circumstance where any consent of or direction from the agents as effectively as if given to each of them. Every instrument appointing any agents shall refer to this Agreement.
(d) Any agent may at any time appoint Required Lenders is required, the Collateral Agent as its agent or attorney in fact with full power and authority, shall send to the extent not prohibited by law, Lenders a notice setting forth a description in reasonable detail of the matter as to do any lawful act under which consent or in direction is requested and the Collateral Agent's proposed course of action with respect of this Agreement on its behalf and in its name.
(e) The thereto. In the event the Collateral Agent shall not have received a response from any Lender within five (5) Business Days after such Xxxxxx's receipt of such notice, such Lender shall be responsible for any willful misconduct or negligence on deemed to have agreed to the part course of any agent appointed with due care and in good faith pursuant to this Sectionaction proposed by the Collateral Agent.
Appears in 1 contract
Appointment of Collateral Agent. (a) Notwithstanding Each Person comprising “Lessor” hereunder hereby irrevocably appoints HCP (the “Collateral Agent”) as the collateral agent hereunder and under all other documents related hereto and authorizes Collateral Agent in such capacity, to take such actions on its behalf and to exercise such powers as are delegated to Collateral Agent in such capacity by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. In performing its functions and duties hereunder, Collateral Agent shall act for itself and as agent for each Person comprising “Lessor” hereunder and does not assume and shall not be deemed to have assumed any other obligation towards or relationship of agency or trust with or for Lessee. The provisions of this Agreement, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any Collateral may at the time be located and for purposes of enforcement, the Collateral Agent shall have the power and may execute and deliver all instruments to appoint one or more Persons to act as its agent of the Secured Parties of all or any part of the Collateral, and to vest in such Person or Persons, in such capacity and Section 16.8.2 are solely for the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereofCollateral Agent and each Person comprising “Lessor” hereunder, and such powers, duties, obligations, Lessee shall have no rights and trusts as the Collateral Agent may consider necessary or desirable, provided that the appointment a third party beneficiary(ies) of any of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant to this Agreementprovisions.
(b) All rights and powers, conferred or imposed upon the The Collateral Agent may be conferred perform any and all of its duties and exercise its rights and powers hereunder by or imposed upon and may be exercised through any one or performed more sub-agents appointed by an agentthe Collateral Agent.
(c) Any noticeThe Collateral Agent may at any time give notice of its resignation to the Persons comprising “Lessor” hereunder and Lessee. Upon receipt of any such notice of resignation, request or other writing given the Persons comprising “Lessor” hereunder shall have the right to appoint a successor Collateral Agent. If no such successor shall have been so appointed by the Persons comprising “Lessor” hereunder and shall have accepted such appointment within ten (10) days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of each Person comprising “Lessor” hereunder, appoint a successor Collateral Agent; provided that if the Collateral Agent shall notify Lessee and each Person comprising “Lessor” hereunder that no such successor is willing to accept such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (i) the retiring Collateral Agent shall be deemed discharged from its duties and obligations hereunder (except that in the case of any Collateral held by the Collateral Agent on behalf of each Person comprising “Lessor” hereunder, the Collateral Agent may continue to have been given hold such Collateral until such time as a successor Collateral Agent is appointed and such Collateral is assigned to such successor Collateral Agent) and (ii) all payments, communications and determinations provided to be made by, to or through the Collateral Agent shall instead be made by or to each of Person comprising “Lessor” hereunder directly, until such time as the agents as effectively as if given to each of them. Every instrument appointing any agents shall refer to this AgreementPersons comprising “Lessor” hereunder appoint a successor Collateral Agent.
(d) Any agent may at any time appoint Upon the acceptance of a successor’s or replacement’s appointment as Collateral Agent, such successor or replacement shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Collateral Agent as and the retiring Collateral Agent shall be discharged from all of its agent or attorney duties and obligations hereunder. After the retiring Collateral Agent’s resignation hereunder, the provisions of this Section 16.9.2 shall continue in fact with full power effect for the benefit of such retiring Collateral Agent and authority, to the extent not prohibited by law, to do any lawful act under or its sub-agents in respect of this Agreement on its behalf and in its name.
(e) The any actions taken or omitted to be taken by any of them while the retiring Collateral Agent shall not be responsible for any willful misconduct or negligence on the part of any agent appointed with due care and was acting in good faith pursuant to this Sectionsuch capacity.
Appears in 1 contract
Appointment of Collateral Agent. (a) Notwithstanding Each Person comprising “Lessor” hereunder hereby irrevocably appoints HCP (the “Collateral Agent”) as the collateral agent hereunder and under all other documents related hereto and authorizes Collateral Agent in such capacity, to take such actions on its behalf and to exercise such powers as are delegated to Collateral Agent in such capacity by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. In performing its functions and duties hereunder, Collateral Agent shall act for itself and as agent for each Person comprising “Lessor” hereunder and does not assume and shall not be deemed to have assumed any other obligation towards or relationship of agency or trust with or for Lessee. The provisions of this Agreement, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any Collateral may at the time be located and for purposes of enforcement, the Collateral Agent shall have the power and may execute and deliver all instruments to appoint one or more Persons to act as its agent of the Secured Parties of all or any part of the Collateral, and to vest in such Person or Persons, in such capacity and Section 16.8.2 are solely for the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereofCollateral Agent and each Person comprising “Lessor” hereunder, and such powers, duties, obligations, Lessee shall have no rights and trusts as the Collateral Agent may consider necessary or desirable, provided that the appointment a third party beneficiary(ies) of any of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant to this Agreementprovisions.
(b) All rights and powers, conferred or imposed upon the The Collateral Agent may be conferred perform any and all of its duties and exercise its rights and powers hereunder by or imposed upon and may be exercised through any one or performed more sub-agents appointed by an agentthe Collateral Agent.
(c) Any noticeThe Collateral Agent may at any time give notice of its resignation to the Persons comprising “Lessor” hereunder and Lessee. Upon receipt of any such notice of resignation, request or other writing given the Persons comprising “Lessor” hereunder shall have the right to appoint a successor Collateral Agent. If no such successor shall have been so appointed by the Persons comprising “Lessor” hereunder and shall have accepted such appointment within ten (10)days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of each Person comprising “Lessor” hereunder, appoint a successor Collateral Agent; provided that if the Collateral Agent shall notify Lessee and each Person comprising “Lessor” hereunder that no such successor is willing to accept such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (i) the retiring Collateral Agent shall be deemed discharged from its duties and obligations hereunder (except that in the case of any Collateral held by the Collateral Agent on behalf of each Person comprising “Lessor” hereunder, the Collateral Agent may continue to have been given hold such Collateral until such time as a successor Collateral Agent is appointed and such Collateral is assigned to such successor Collateral Agent) and (ii) all payments, communications and determinations provided to be made by, to or through the Collateral Agent shall instead be made by or to each of Person comprising “Lessor” hereunder directly, until such time as the agents as effectively as if given to each of them. Every instrument appointing any agents shall refer to this AgreementPersons comprising “Lessor” hereunder appoint a successor Collateral Agent.
(d) Any agent may at any time appoint Upon the acceptance of a successor’s or replacement’s appointment as Collateral Agent, such successor or replacement shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Collateral Agent as and the retiring Collateral Agent shall be discharged from all of its agent or attorney duties and obligations hereunder. After the retiring Collateral Agent’s resignation hereunder, the provisions of this Section 16.9.2 shall continue in fact with full power effect for the benefit of such retiring Collateral Agent and authority, to the extent not prohibited by law, to do any lawful act under or its sub-agents in respect of this Agreement on its behalf and in its name.
(e) The any actions taken or omitted to be taken by any of them while the retiring Collateral Agent shall not be responsible for any willful misconduct or negligence on the part of any agent appointed with due care and was acting in good faith pursuant to this Sectionsuch capacity.
Appears in 1 contract
Samples: Master Lease and Security Agreement (Brookdale Senior Living Inc.)
Appointment of Collateral Agent. Xxxxxxx Associates, L.P., a Delaware limited partnership with its principal place of business in New York, is hereby appointed the initial collateral agent (in such capacity, the "Collateral Agent") to act on behalf of the Noteholders in connection with the Collateral and pursuant to the provisions of the Collateral Agency Agreement and the other Security Documents. The Collateral Agent shall hold all Collateral granted pursuant to the Security Documents for the equal and ratable benefit of itself and the Noteholders. Subject to the provisions of the Collateral Agency Agreement and the other Security Documents, (a) Notwithstanding the Collateral Agent will execute and deliver the Collateral Agency Agreement and the other Security Documents and act in accordance with the terms thereof, (b) the Collateral Agent may, in its sole discretion and without the consent of the Noteholders, take all actions it deems necessary or appropriate in order to (i) enforce any other provisions of this Agreement, at any timethe terms of the Security Documents and (ii) collect and receive, for the purpose benefit of meeting the Noteholders, any legal requirement and all amounts payable in respect of any jurisdiction in which any Collateral may at the time be located Obligations, and for purposes of enforcement, (c) the Collateral Agent shall have the power to institute and to maintain such suits and proceedings as it may execute and deliver all instruments deem expedient to appoint one or more Persons to act as its agent prevent any impairment of the Secured Parties of all Collateral by any act that may be unlawful or any part in violation of the Collateral, and to vest in such Person Security Documents or Persons, in such capacity and for the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereofthis Agreement, and such powers, duties, obligations, rights suits and trusts proceedings as the Collateral Agent may consider necessary deem expedient to preserve or desirableprotect its interests and the interests of the Noteholders in the Collateral (including the power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, provided rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest thereunder or be prejudicial to the interests of the Noteholders or the Collateral Agent). Notwithstanding the foregoing, the Collateral Agent may, at the expense of the Issuer, request the direction of the Required Holders with respect to any such actions and, upon receipt of the written consent of the Required Holders, shall take such actions, subject in each case to the provisions of the Collateral Agency Agreement and the other Security Documents. Reference is made to the Collateral Agency Agreement with respect to the appointment of such agent shall be subject to a successor Collateral Agent in the approval event of resignation or removal of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the initial Collateral Agent is so liable pursuant to this Agreementor any successor Collateral Agent.
(b) All rights and powers, conferred or imposed upon the Collateral Agent may be conferred or imposed upon and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to the Collateral Agent shall be deemed to have been given to each of the agents as effectively as if given to each of them. Every instrument appointing any agents shall refer to this Agreement.
(d) Any agent may at any time appoint the Collateral Agent as its agent or attorney in fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name.
(e) The Collateral Agent shall not be responsible for any willful misconduct or negligence on the part of any agent appointed with due care and in good faith pursuant to this Section.
Appears in 1 contract
Appointment of Collateral Agent. (a) Notwithstanding Each Investor hereby authorizes Xxxxxx Xxxxxx (“Xxxxxx Xxxxxx “) to act as collateral agent (“Collateral Agent”) on behalf of the Investor and any other provisions Investors of this the Notes, and in such capacity to enter into the Security Agreement and to exercise for the benefit of the Investor all rights, powers and remedies provided to it, under or pursuant to the Security Agreement including, without limitation, those available upon an Event of Default (as defined in the Notes), subject always to the terms, conditions, limitations and restrictions provided in the Security Agreement. Except with respect to actions as to which the Collateral Agent is expressly required to act under the terms of the Security Agreement, at any the Investor hereby agrees that the Collateral Agent may act or refrain from acting thereunder with the consent, in writing of the Requisite Holders, and that the Requisite Holders shall have the right to direct the time, method and place of conducting any proceeding for any right or remedy available to the purpose Collateral Agent; provided, however, that such direction shall not be in conflict with any rule of meeting any legal requirement law or expose the Collateral Agent to personal liability, such direction shall not be unduly prejudicial to the rights of any jurisdiction non-consenting holder, and the Collateral Agent may take any action deemed proper by the Collateral Agent, in which its discretion, that is not inconsistent with such direction or the terms of the Security Agreement. The Investor agrees that the duties of the Collateral Agent are only such as are specifically provided in the Security Agreement, and the Collateral Agent shall have no other duties, implied or otherwise. The appointment of Xxxxxx Xxxxxx as Collateral Agent shall be deemed accepted by Xxxxxx Xxxxxx, and it shall be and become obligated to the extent provided in the Security Agreement, only upon the execution and delivery of the Security Agreement by Xxxxxx Xxxxxx and the Borrowers.
(b) Each Investor agrees that the Collateral Agent may consult with counsel of its choice and shall not be responsible or liable for any action taken, suffered or omitted to be taken by it in good faith in accordance with the advice of such counsel (subject to the exceptions set forth in the next two sentences). The Investor further agrees that the Collateral may at Agent shall not incur liability for any action or omission to act by it unless the time be located and for purposes Collateral Agent’s conduct constitutes willful misconduct or gross negligence. During the continuance of enforcementan Event of Default, the Collateral Agent shall have be required to use the power same degree of care and may execute skill in its exercise of its powers and deliver all instruments to appoint one or more Persons to act performance of its duties as its agent of a prudent person would exercise under the Secured Parties of all or any part of circumstances in the Collateral, and to vest in such Person or Persons, in such capacity and for the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereof, and such powers, duties, obligations, rights and trusts as the Collateral Agent may consider necessary or desirable, provided that the appointment conduct of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant to this Agreement.
(b) All rights and powers, conferred or imposed upon the Collateral Agent may be conferred or imposed upon and may be exercised or performed by an agentperson’s own affairs.
(c) Any notice, request None of the provisions of this Agreement or other writing given the Security Agreement shall be construed to require the Collateral Agent to expend or risk its own funds or otherwise to incur any liability (financial or otherwise) in the performance of any of its duties hereunder or thereunder, or in the exercise of any of its rights or powers unless it shall be deemed to have been given to each satisfied that one or more of the agents Debtor (as effectively as if given defined in the Security Agreement) and the Investors are at the time obligated and in a financial position to each pay the Collateral Agent’s reasonably anticipated fees for its services and its out-of-pocket expenses (including fees of themits counsel) in the performance of such duties or the exercise of any of such rights or powers and to indemnify it against such risk or liability. Every instrument appointing In no event shall the Collateral Agent be liable for (i) any agents consequential, punitive or special damages or (ii) the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians. The Collateral Agent shall refer to this Agreementnot incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder or thereunder by reason of any occurrence beyond the control of the Collateral Agent (including, but not limited to, any act or provision of any present or future law or regulation or governmental authority, any act of God or war, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility).
(d) Any agent may at any time appoint Each Investor agrees that the Collateral Agent as its agent shall not be required or attorney bound to make any investigation into the facts or matters stated in fact with full power and authorityany resolution, to certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document. The Collateral Agent may execute any of the extent not prohibited by law, to do any lawful act powers under or in respect of this Agreement or the Security Agreement or perform any duties hereunder or thereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible or liable for the acts or omissions, including any willful misconduct or gross negligence, on its behalf and in its namethe part of any agent, attorney, custodian or nominee so appointed.
(e) The Borrowers covenant and agree, for the benefit of the Investor and any other purchasers of the Notes, and as an additional obligation secured under the Security Agreement, to be responsible to pay to the Collateral Agent from time to time, and the Collateral Agent shall not be entitled to, fees and expenses as provided in the Security Agreement.
(f) The Borrowers agree, for the benefit of the Investors, and as an additional obligation secured under the Security Agreement, to be responsible for to indemnify and hold the Collateral Agent and its directors, employees, officers, agents, successors and assigns harmless from and against any willful misconduct or negligence and all losses, claims, damages, liabilities and expenses, including, without limitation, reasonable costs of investigation and reasonable counsel fees and expenses that may be imposed on the part Collateral Agent or incurred by it in connection with its acceptance of its appointment as the Collateral Agent hereunder or under the Security Agreement or the performance of its duties thereunder, except as a result of the Collateral Agent’s gross negligence or willful misconduct. Such indemnity includes, without limitation, all losses, damages, liabilities and expenses (including reasonable counsel fees and expenses) incurred in connection with any litigation (whether at the trial or appellate levels) arising from this Agreement or the Security Agreement or involving the subject matter hereof or thereof.
(g) The Investors agree that Xxxxxx Xxxxxx or any successor may at any time resign as Collateral Agent by giving written notice thereof to the Company at least 20 business days prior to the date of such proposed resignation. Upon receiving such notice of resignation, the Investors shall promptly appoint a successor collateral agent appointed by written instrument executed by the Requisite Holders a copy of which shall be delivered to the resigning Collateral Agent and a copy to the successor collateral agent. If an instrument of acceptance by a successor collateral agent shall not have been delivered to the Collateral Agent within 20 business days after giving such notice of resignation, the resigning Collateral Agent may petition any court of competent jurisdiction for the appointment of a successor collateral agent. Such court may thereupon, after such notice, if any, as it may deem proper, appoint a successor collateral agent. The Collateral Agent may be removed at any time by written action by the Requisite Holders, delivered to the Collateral Agent and to the Company. If the Collateral Agent shall be so removed, the Requisite Holders shall promptly appoint a successor collateral agent in accordance with due care and the procedures set forth in good faith pursuant to this SectionSection 7.1(g).
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Cardium Therapeutics, Inc.)
Appointment of Collateral Agent. (a) Notwithstanding [Intentionally Omitted].
(b) The Domestic Agent and each Lender hereby confirms Wxxxx Fargo as Collateral Agent and hereby authorizes the Collateral Agent to enter into any other provisions Security Documents substantially in the form attached hereto, any documents required to be delivered pursuant to Sections 7.11 or 7.13, and any amendments, restatements, or supplements related thereto or to any of this Agreementthe Security Documents which are necessary (as determined by Wxxxx Fargo in its discretion) to reflect the designation of Wxxxx Fargo as Collateral Agent, at any time, and to take all action contemplated thereby. All rights and remedies under the Security Documents may be exercised by the Collateral Agent for the purpose benefit of meeting the Domestic Agent and the Lenders and the other beneficiaries thereof upon the terms thereof. The Domestic Agent and the Lenders further agree that the Collateral Agent may assign its rights and obligations as Collateral Agent under any legal requirement of the Security Documents to any affiliate of the Collateral Agent or to any trustee, which assignee in each such case shall (subject to compliance with any requirements of applicable law governing the assignment of such Security Documents) be entitled to all the rights of the Collateral Agent under and with respect to the applicable Security Document.
(c) In each circumstance where, under any provision of any jurisdiction in which any Collateral may at the time be located and for purposes of enforcementSecurity Document, the Collateral Agent shall have the power and may execute and deliver all instruments right to appoint one grant or more Persons to act as its agent of the Secured Parties of all withhold any consent, exercise any remedy, make any determination or direct any part of the Collateral, and to vest in such Person or Persons, in such capacity and for the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereof, and such powers, duties, obligations, rights and trusts as action by the Collateral Agent may consider necessary or desirableunder such Security Document, provided that the appointment of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant shall act in respect of such consent, exercise of remedies, determination or action, as the case may be, with the consent of and at the direction of the Required Lenders; provided, however, that no such consent of the Required Lenders shall be required with respect to this Agreement.
(b) All rights and powersany consent, conferred determination or imposed upon other matter that is, in the Collateral Agent’s judgment, ministerial or administrative in nature; provided further that in no event shall the Collateral Agent may be conferred required, and in all cases shall be fully justified in failing or imposed upon refusing, to take any action under or pursuant to any Security Document which, in the reasonable opinion of the Collateral Agent, (i) would be contrary to the terms of any Security Document or would subject it or its officers, employees, or directors to liability, unless and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to until the Collateral Agent shall be deemed indemnified or tendered security to have been given its satisfaction by the Lenders against any and all loss, cost, expense or liability in connection therewith, or (ii) would be contrary to law, in each of the agents as effectively as if given to each of them. Every instrument appointing any agents shall refer to this Agreement.
(d) Any agent may at any time appoint the Collateral Agent as its agent case anything herein or attorney in fact with full power and authority, elsewhere contained to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its namecontrary notwithstanding.
(e) The Collateral Agent shall not be responsible for any willful misconduct or negligence on the part of any agent appointed with due care and in good faith pursuant to this Section.
Appears in 1 contract
Samples: Credit Agreement (Interface Inc)
Appointment of Collateral Agent. (a) Notwithstanding any other provisions of this Agreement, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any Collateral may at the time be located and for purposes of enforcement, the Collateral Agent shall have the power and may execute and deliver all instruments to appoint one or more Persons to act as its agent of the Each Secured Parties of all or any part of the Collateral, and to vest in such Person or Persons, in such capacity and for the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereof, and such powers, duties, obligations, rights and trusts as the Collateral Agent may consider necessary or desirable, provided that the appointment of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant to this Agreement.
(b) All rights and powers, conferred or imposed upon the Collateral Agent may be conferred or imposed upon and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to the Collateral Agent shall be deemed to have been given to each of the agents as effectively as if given to each of them. Every instrument appointing any agents shall refer to this Agreement.
(d) Any agent may at any time appoint Party hereby irrevocably appoints the Collateral Agent as its agent or attorney in fact with full power and authority, authorizes the Collateral Agent to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto.
(b) The bank serving as the Collateral Agent hereunder shall have the same rights and powers in its namecapacity as a Secured Party as any other Secured Party and may exercise the same as though it were not the Collateral Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Hanover or any of its Subsidiaries as if it were not the Collateral Agent hereunder.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Collateral Agent is required to exercise in writing as directed by the Required Secured Parties (or such other number or percentage of the Secured Parties as shall be necessary under the circumstances as provided in Section 8.1), and (c) except as expressly set forth herein, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Hanover or any of its Subsidiaries that is communicated to or obtained by the bank serving as Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Secured Parties (or such other number or percentage of the Secured Parties as shall be necessary under the circumstances as provided in Section 8.1) or in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Collateral Agent by HCLP or a Secured Party, and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document.
(d) The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for HCLP), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(e) The Collateral Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Collateral Agent. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Affiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Affiliates of the Collateral Agent and any such sub-agent in connection with its activities as Collateral Agent.
(f) Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any time by notifying the Secured Parties and HCLP. Upon any such resignation, the Required Secured Parties shall have the right, to appoint a successor, which successor shall be subject to the approval of HCLP (such approval not to be unreasonably withheld or delayed). If no successor shall have been so appointed by the Required Secured Parties and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Secured Parties, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank, which successor shall be subject to the approval of HCLP (such approval not to be unreasonably withheld or delayed). Upon the acceptance of its appointment as Collateral Agent hereunder by a successor and the approval of HCLP as required above, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. After the Collateral Agent’s resignation hereunder, the provisions of this Article and Section 7.5 hereof shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Affiliates in respect of any actions taken or omitted to be taken by any of them while it was acting as Collateral Agent.
(g) Each Secured Party acknowledges that it has, independently and without reliance upon the Collateral Agent or any other Secured Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Secured Party also acknowledges that it will, independently and without reliance upon the Collateral Agent or any other Secured Party and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder.
(h) Each Secured Party, by accepting the benefits of this Agreement, agrees to indemnify the Collateral Agent in its capacity as such (to the extent not reimbursed by HCLP, or the other Grantors and without limiting the obligation of HCLP and each other Grantor to do so), ratably according to the respective amounts of the Secured Obligations owed to such Secured Party, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time (including, without limitation, at any time following the payment of the Secured Obligations) be imposed on, incurred by or asserted against the Collateral Agent in any way relating to or arising out of this Agreement, any of the other Transaction Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Collateral Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the Collateral Agent’s gross negligence or willful misconduct. The agreements in this paragraph shall survive the payment of the Secured Obligations and all other amounts payable hereunder. No Secured Party shall be entitled to the benefits of this Agreement if it has failed to confirm in writing (in form and substance satisfactory to the Collateral Agent) that it is bound by and subject to the provisions of this Section 7.5 following a request to do so by the Collateral Agent. Any Secured Party which fails to provide such a confirmation shall not be responsible for any willful misconduct or negligence on the part of any agent appointed entitled to vote with due care and in good faith pursuant respect to matters relating to this SectionAgreement or the Collateral or to share in any distribution of, or payments or distributions in respect of, the Collateral.
Appears in 1 contract
Samples: Guarantee and Collateral Agreement (Hanover Compressor Co /)
Appointment of Collateral Agent. (a) Notwithstanding any other provisions Each Co-Agent and each Lender hereby designates STBA as Collateral Agent and hereby authorizes the Collateral Agent to enter into each of this Agreementthe Security Documents substantially in the form attached hereto, at any time, and to take all action contemplated thereby. All rights and remedies under the Security Documents may be exercised by the Collateral Agent for the purpose benefit of meeting the Co-Agents and the Lenders and the other beneficiaries thereof upon the terms thereof. The Co-Agents and the Lenders further agree that the Collateral Agent may assign its rights and obligations as Collateral Agent under any legal requirement of the Security Documents to any affiliate of the Collateral Agent or to any trustee, which assignee in each such case shall (subject to compliance with any requirements of applicable law governing the assignment of such Security Documents) be entitled to all the rights of the Collateral Agent under and with respect to the ap- plicable Security Document.
(b) In each circumstance where, under any provision of any jurisdiction in which any Collateral may at the time be located and for purposes of enforcementSecurity Document, the Collateral Agent shall have the power and may execute and deliver all instruments right to appoint one grant or more Persons to act as its agent of the Secured Parties of all withhold any consent, exercise any remedy, make any determination or direct any part of the Collateral, and to vest in such Person or Persons, in such capacity and for the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereof, and such powers, duties, obligations, rights and trusts as action by the Collateral Agent may consider necessary or desirableunder such Security Document, provided that the appointment of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant shall act in respect of such consent, exercise of remedies, determination or action, as the case may be, with the consent - 64 - of and at the direction of the Required Lenders; provided, however, that no such consent of the Required Lenders shall be required with respect to this Agreement.
(b) All rights and powersany consent, conferred determination or imposed upon other matter that is, in the Collateral Agent's judgment, ministerial or administrative in nature; provided, fur- ther, that in no event shall the Collateral Agent may be conferred required, and in all cases shall be fully justified in failing or imposed upon refusing, to take any action under or pursuant to any Security Document which, in the reasonable opinion of the Collateral Agent, (a) would be contrary to the terms of any Security Document or would subject it or its officers, employees, or directors to liability, unless and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to until the Collateral Agent shall be deemed indemnified or tendered security to have been given its satisfaction by the Lenders against any and all loss, cost, expense or liability in connection therewith, or (b) would be contrary to law, in each case anything herein or elsewhere contained to the contrary notwithstanding. In each cir- cumstance where any consent of or direction from the agents as effectively as if given to each of them. Every instrument appointing any agents shall refer to this Agreement.
(d) Any agent may at any time appoint Required Lenders is required, the Collateral Agent as its agent or attorney in fact with full power and authority, shall send to the extent not prohibited by law, Lenders a notice setting forth a description in reasonable detail of the matter as to do any lawful act under which consent or in direction is requested and the Collateral Agent's proposed course of action with respect of this Agreement on its behalf and in its name.
(e) The thereto. In the event the Collateral Agent shall not have received a response from any Lender within five (5) Business Days after such Lender's receipt of such notice, such Lender shall be responsible for any willful misconduct or negligence on deemed to have agreed to the part course of any agent appointed with due care and in good faith pursuant to this Sectionaction proposed by the Collateral Agent.
Appears in 1 contract
Samples: Term Loan Agreement (Interface Inc)
Appointment of Collateral Agent. (a) Notwithstanding any other provisions Each Co-Agent and each Lender hereby designates STBA as Col- lateral Agent and hereby authorizes the Collateral Agent to enter into each of this the Security Documents substantially in the form attached hereto and to the Letter of Credit Agreement, at any time, and to take all action contemplated thereby. All rights and remedies under the Security Documents may be exercised by the Collateral Agent for the purpose benefit of meeting the Co-Agents and the Lenders and the other beneficiaries thereof upon the terms thereof. The Co- Agents and the Lenders further agree that the Collateral Agent may assign its rights and obligations as Collateral Agent under any legal requirement of the Security Documents to any affiliate of the Collateral Agent or to any trustee, which assignee in each such case shall (subject to compliance with any requirements of applicable law governing the assignment of such Security Documents) be entitled to all the rights of the Collateral Agent under and with respect to the applicable Security Document.
(b) In each circumstance where, under any provision of any jurisdiction in which any Collateral may at the time be located and for purposes of enforcementSecurity Document, the Collateral Agent shall have the power and may execute and deliver all instruments right to appoint one grant or more Persons to act as its agent of the Secured Parties of all withhold any consent, exercise any remedy, make any determination or direct any part of the Collateral, and to vest in such Person or Persons, in such capacity and for the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereof, and such powers, duties, obligations, rights and trusts as action by the Collateral Agent may consider necessary or desirableunder such Security Document, provided that the appointment Collateral Agent shall act in respect of such agent consent, exercise of remedies, determination or action, as the case may be, with the consent of and at the direction of the Required Lenders; provided, however, that no such consent of the Required Lenders shall be subject required with respect to any consent, determination or other matter that is, in the approval of the Administrative Collateral Agent's judgment, which approval shall not be unreasonably withheldministerial or administrative in nature; provided, and provided further, that any such agent in no event shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable be required, and in all cases shall be fully justified in failing or refusing, to take any action under or pursuant to this Agreement.
(b) All rights and powersany Security Document which, conferred or imposed upon in the reasonable opinion of the Collateral Agent may Agent, (a) would be conferred contrary to the terms of any Security Document or imposed upon would subject it or its officers, employees, or directors to liability, unless and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to until the Collateral Agent shall be deemed indemnified or tendered security to have been given its satisfaction by the Lenders against any and all loss, cost, expense or liability in connection therewith, or (b) would be contrary to law, in each case anything herein or elsewhere con- tained to the contrary notwithstanding. In each circumstance where any consent of or direction from the agents as effectively as if given to each of them. Every instrument appointing any agents shall refer to this Agreement.
(d) Any agent may at any time appoint Required Lenders is required, the Collateral Agent as its agent or attorney in fact with full power and authority, shall send to the extent not prohibited by law, Lenders a notice setting forth a description in reasonable detail of the matter as to do any lawful act under which consent or in direction is requested and the Collateral Agent's proposed course of action with respect of this Agreement on its behalf and in its name.
(e) The thereto. In the event the Collateral Agent shall not have received a response from any Lender within five (5) Business Days after such Lender's receipt of such notice, such Lender shall be responsible for any willful misconduct or negligence on deemed to have agreed to the part course of any agent appointed with due care and in good faith pursuant to this Sectionaction proposed by the Collateral Agent.
Appears in 1 contract
Samples: Credit Agreement (Interface Inc)
Appointment of Collateral Agent. (a) Notwithstanding Each Person comprising “Lessor” hereunder hereby irrevocably appoints HCP (the “Collateral Agent”) as the collateral agent hereunder and under all other documents related hereto and authorizes Collateral Agent in such capacity, to take such actions on its behalf and to exercise such powers as are delegated to Collateral Agent in such capacity by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. In performing its functions and duties hereunder, Collateral Agent shall act for itself and as agent for each other Person, if any, comprising “Lessor” hereunder and does not assume and shall not be deemed to have assumed any other obligation towards or relationship of agency or trust with or for Xxxxxx. The provisions of this Agreement, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any Collateral may at the time be located and for purposes of enforcement, the Collateral Agent shall have the power and may execute and deliver all instruments to appoint one or more Persons to act as its agent of the Secured Parties of all or any part of the Collateral, and to vest in such Person or Persons, in such capacity and Section 16.10.2 are solely for the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereofCollateral Agent and each Person comprising “Lessor” hereunder, and such powers, duties, obligations, Lessee shall no rights and trusts as the Collateral Agent may consider necessary or desirable, provided that the appointment a third party beneficiary(ies) of any of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant to this Agreementprovisions.
(b) All rights and powers, conferred or imposed upon the The Collateral Agent may be conferred perform any and all of its duties and exercise its rights and powers hereunder by or imposed upon and may be exercised through any one or performed more sub-agents appointed by an agentthe Collateral Agent.
(c) Any noticeThe Collateral Agent may at any time give notice of its resignation to the Person(s) comprising “Lessor” hereunder and Xxxxxx. Upon receipt of any such notice of resignation, request or other writing given the Person(s) comprising “Lessor” hereunder shall have the right to appoint a successor Collateral Agent. If no such successor shall have been so appointed by the Person(s) comprising “Lessor” hereunder and shall have accepted such appointment within ten (10) days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of each Person comprising “Lessor” hereunder the Landlords, appoint a successor Collateral Agent; provided; however, that if the Collateral Agent shall notify Lessee and each Person comprising “Lessor” hereunder that no such successor is willing to accept such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (i) the retiring Collateral Agent shall be deemed discharged from its duties and obligations hereunder (except that in the case of any Collateral held by the Collateral Agent on behalf of each Person comprising “Lessor” hereunder, the Collateral Agent may continue to have been given hold such Collateral until such time as a successor Collateral Agent is appointed and such Collateral is assigned to such successor Collateral Agent) and (ii) all payments, communications and determinations provided to be made by, to or through the Collateral Agent shall instead be made by or to each of Person comprising “Lessor” hereunder directly, until such time as the agents as effectively as if given to each of them. Every instrument appointing any agents shall refer to this AgreementPerson(s) comprising “Lessor” hereunder appoint a successor Collateral Agent.
(d) Any agent may at any time appoint Upon the acceptance of a successor’s or replacement’s appointment as Collateral Agent, such successor or replacement shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Collateral Agent as and the retiring Collateral Agent shall be discharged from all of its agent or attorney duties and obligations hereunder. After the retiring Collateral Agent’s resignation hereunder, the provisions of this Section 16.10.2 shall continue in fact with full power effect for the benefit of such retiring Collateral Agent and authority, to the extent not prohibited by law, to do any lawful act under or its sub-agents in respect of this Agreement on its behalf and in its name.
(e) The any actions taken or omitted to be taken by any of them while the retiring Collateral Agent shall not be responsible for any willful misconduct or negligence on the part of any agent appointed with due care and was acting in good faith pursuant to this Sectionsuch capacity.
Appears in 1 contract
Samples: Master Lease and Security Agreement (Emeritus Corp\wa\)
Appointment of Collateral Agent. (a) Notwithstanding [Intentionally Omitted].
(b) The Domestic Agent and each Lender hereby confirms Xxxxx Fargo as Collateral Agent and hereby authorizes the Collateral Agent to enter into any other provisions Security Documents substantially in the form attached hereto, any documents required to be delivered pursuant to Sections 7.11 or 7.13, and any amendments, restatements, or supplements related thereto or to any of this Agreementthe Security Documents which are necessary (as determined by Xxxxx Fargo in its discretion) to reflect the designation of Xxxxx Fargo as Collateral Agent, at any time, and to take all action contemplated thereby. All rights and remedies under the Security Documents may be exercised by the Collateral Agent for the purpose benefit of meeting the Domestic Agent and the Lenders and the other beneficiaries thereof upon the terms thereof. The Domestic Agent and the Lenders further agree that the Collateral Agent may assign its rights and obligations as Collateral Agent under any legal requirement of the Security Documents to any affiliate of the Collateral Agent or to any trustee, which assignee in each such case shall (subject to compliance with any requirements of applicable law governing the assignment of such Security Documents) be entitled to all the rights of the Collateral Agent under and with respect to the applicable Security Document.
(c) In each circumstance where, under any provision of any jurisdiction in which any Collateral may at the time be located and for purposes of enforcementSecurity Document, the Collateral Agent shall have the power and may execute and deliver all instruments right to appoint one grant or more Persons to act as its agent of the Secured Parties of all withhold any consent, exercise any remedy, make any determination or direct any part of the Collateral, and to vest in such Person or Persons, in such capacity and for the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereof, and such powers, duties, obligations, rights and trusts as action by the Collateral Agent may consider necessary or desirableunder such Security Document, provided that the appointment of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant shall act in respect of such consent, exercise of remedies, determination or action, as the case may be, with the consent of and at the direction of the Required Lenders; provided, however, that no such consent of the Required Lenders shall be required with respect to this Agreement.
(b) All rights and powersany consent, conferred determination or imposed upon other matter that is, in the Collateral Agent’s judgment, ministerial or administrative in nature; provided further that in no event shall the Collateral Agent may be conferred required, and in all cases shall be fully justified in failing or imposed upon refusing, to take any action under or pursuant to any Security Document which, in the reasonable opinion of the Collateral Agent, (i) would be contrary to the terms of any Security Document or would subject it or its officers, employees, or directors to liability, unless and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to until the Collateral Agent shall be deemed indemnified or tendered security to have been given its satisfaction by the Lenders against any and all loss, cost, expense or liability in connection therewith, or (ii) would be contrary to law, in each of the agents as effectively as if given to each of them. Every instrument appointing any agents shall refer to this Agreement.
(d) Any agent may at any time appoint the Collateral Agent as its agent case anything herein or attorney in fact with full power and authority, elsewhere contained to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its namecontrary notwithstanding.
(e) The Collateral Agent shall not be responsible for any willful misconduct or negligence on the part of any agent appointed with due care and in good faith pursuant to this Section.
Appears in 1 contract
Samples: Credit Agreement (Interface Inc)
Appointment of Collateral Agent. Xxxxxxx Associates, L.P., a Delaware limited partnership with its principal place of business in New York, is hereby appointed the initial collateral agent (ain such capacity, the "Collateral Agent") Notwithstanding any other to act on behalf of the Noteholders in connection with the Collateral and pursuant to the provisions of this the Amended Collateral Agency Agreement and the other Security Documents. Subject to the provisions of the Amended Collateral Agency Agreement, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any Collateral may at the time be located and for purposes of enforcement, the Collateral Agent shall have hold all Collateral granted pursuant to the power Security Documents for the equal and may ratable benefit of itself and the Noteholders. Subject to the provisions of the Amended Collateral Agency Agreement and the other Security Documents, (a) the Collateral Agent will execute and deliver all instruments to appoint one or more Persons to the Collateral Agency Agreement Amendment and the other Security Documents and act as in accordance with the terms thereof, (b) the Collateral Agent may, in its agent sole discretion and without the consent of the Secured Parties of Noteholders, take all actions it deems necessary or appropriate in order to (i) enforce any part of the Collateralterms of the Security Documents and (ii) collect and receive, and to vest in such Person or Persons, in such capacity and for the benefit or on behalf of the Secured PartiesNoteholders, any and all amounts payable in respect of the Obligations, and (c) the Collateral Agent shall have power to institute and to maintain such title suits and proceedings as it may deem expedient to prevent any impairment of the Collateral, Collateral by any act that may be unlawful or any part thereofin violation of the Security Documents or this Agreement, and such powers, duties, obligations, rights suits and trusts proceedings as the Collateral Agent may consider necessary deem expedient to preserve or desirableprotect its interests and the interests of the Noteholders in the Collateral (including the power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, provided rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest thereunder or be prejudicial to the interests of the Noteholders or the Collateral Agent). Notwithstanding the foregoing, the Collateral Agent may, at the expense of the Issuer, request the direction of the Required Holders with respect to any such actions and, upon receipt of the written consent of the Required Holders, shall take such actions, subject in each case to the provisions of the Amended Collateral Agency Agreement and the other Security Documents. Reference is made to the Amended Collateral Agency Agreement with respect to the appointment of such agent shall be subject to a successor Collateral Agent in the approval event of resignation or removal of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the initial Collateral Agent is so liable pursuant to this Agreementor any successor Collateral Agent.
(b) All rights and powers, conferred or imposed upon the Collateral Agent may be conferred or imposed upon and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to the Collateral Agent shall be deemed to have been given to each of the agents as effectively as if given to each of them. Every instrument appointing any agents shall refer to this Agreement.
(d) Any agent may at any time appoint the Collateral Agent as its agent or attorney in fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name.
(e) The Collateral Agent shall not be responsible for any willful misconduct or negligence on the part of any agent appointed with due care and in good faith pursuant to this Section.
Appears in 1 contract
Appointment of Collateral Agent. (ai) Notwithstanding Each Person comprising “Lessor” hereby irrevocably appoints HCP (the “Collateral Agent”) as the collateral agent hereunder and under all other documents related hereto and authorizes Collateral Agent in such capacity, to take such actions on its behalf and to exercise such powers as are delegated to Collateral Agent in such capacity by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. In performing its functions and duties hereunder, Collateral Agent shall act for itself and as agent for each Person comprising “Lessor” hereunder and does not assume and shall not be deemed to have assumed any other obligation towards or relationship of agency or trust with or for Sublessee. The provisions of this AgreementSection 5(b) are solely for the benefit of Collateral Agent and each Person comprising “Lessor” hereunder, and Sublessee shall no rights as a third party beneficiary(ies) of any of such provisions.
(ii) The Collateral Agent may perform any and all of its duties and exercise its rights and powers hereunder by or through any one or more sub-agents appointed by the Collateral Agent.
(iii) The Collateral Agent may at any time, for time give notice of its resignation to the purpose of meeting any legal requirement Persons comprising “Lessor” hereunder and Sublessee. Upon receipt of any jurisdiction such notice of resignation, the Persons comprising “Lessor” hereunder shall have the right to appoint a successor Collateral Agent. If no such successor shall have been so appointed by the Persons comprising “Lessor” hereunder and shall have accepted such appointment within ten (10) days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of each Person comprising “Lessor” hereunder, appoint a successor Collateral Agent; provided that if the Collateral Agent shall notify Sublessee and each Person comprising “Lessor” hereunder that no such successor is willing to accept such appointment, then such resignation shall nonetheless become effective in which accordance with such notice and (i) the retiring Collateral Agent shall be discharged from its duties and obligations hereunder (except that in the case of any Collateral may at held by the time be located and for purposes Collateral Agent on behalf of enforcementeach Person comprising “Lessor” hereunder, the Collateral Agent shall have the power and may execute and deliver all instruments continue to appoint one or more Persons to act hold such Collateral until such time as its agent of the Secured Parties of all or any part of the Collateral, and to vest in such Person or Persons, in such capacity and for the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereof, and such powers, duties, obligations, rights and trusts as the Collateral Agent may consider necessary or desirable, provided that the appointment of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the a successor Collateral Agent is so liable pursuant appointed and such Collateral is assigned to this Agreement.
such successor Collateral Agent) and (bii) All rights all payments, communications and powersdeterminations provided to be made by, conferred to or imposed upon the Collateral Agent may be conferred or imposed upon and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to through the Collateral Agent shall instead be deemed to have been given made by or to each of Person comprising “Lessor” hereunder directly, until such time as the agents as effectively as if given to each of them. Every instrument appointing any agents shall refer to this AgreementPersons comprising “Lessor” hereunder appoint a successor Collateral Agent.
(div) Any agent may at any time appoint Upon the acceptance of a successor's or replacement's appointment as Collateral Agent, such successor or replacement shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Collateral Agent as and the retiring Collateral Agent shall be discharged from all of its agent or attorney duties and obligations hereunder. After the retiring Collateral Agent's resignation hereunder, the provisions of this Section 5(b) shall continue in fact with full power effect for the benefit of such retiring Collateral Agent and authority, to the extent not prohibited by law, to do any lawful act under or its sub-agents in respect of this Agreement on its behalf and in its name.
(e) The any actions taken or omitted to be taken by any of them while the retiring Collateral Agent shall not be responsible for any willful misconduct or negligence on the part of any agent appointed with due care and was acting in good faith pursuant to this Sectionsuch capacity.
Appears in 1 contract
Appointment of Collateral Agent. By its execution hereof, each Lender hereby designates and appoints Xxxxx Xxxxxx as its agent to receive on its behalf the grant of security and assignment of interest in the Collateral to secure Borrower's repayment of the principal and interest of the Loan made by such Lender, and all other Indebtedness to such Lender in respect of its Loan and this Agreement and the other Loan Documents (athe "Security Interest"). By her acceptance hereof, Xxxxx Xxxxxx accepts such designation and appointment and agrees to act as the agent for each Lender pro rata as its interest may appear in (i) Notwithstanding any other provisions of this Agreementaccepting and holding the Security Interest, at any time(ii) protecting and defending the Security Interest, for (iii) enforcing the purpose of meeting any legal requirement of any jurisdiction in which any Collateral may at the time be located and for purposes of enforcement, rights conferred upon the Collateral Agent shall have the power and may execute and deliver all instruments to appoint one or more Persons to act as its agent of the Secured Parties of all or any part of by this Agreement against the Collateral, and (iv) distributing the proceeds from the realization of such enforcement among the Lenders according to vest in their respective Sharing Percentages. For all purposes hereof, each Lender's "Sharing Percentage" shall initially be the Sharing Percentage set forth next to such Person or PersonsLender's name on Schedule 1, in such capacity and for the benefit or on behalf as amended from time to time, of the Secured Parties, such title Loan Agreement. Collateral Agent agrees that it will comply with the terms hereof and exercise reasonable care to assure the Collateral, or any part thereof, and such powers, duties, obligations, rights and trusts as safe custody of the Collateral Agent may consider necessary or desirableunder its control and in carrying out its other duties under this Agreement; provided, provided that the appointment of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided furtherhowever, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant to this Agreement.
(b) All rights and powers, conferred or imposed upon the Collateral Agent may be conferred or imposed upon and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to the Collateral Agent shall be deemed to have been given to each of the agents as effectively as if given to each of them. Every instrument appointing any agents shall refer to this Agreement.
(d) Any agent may at any time appoint the Collateral Agent as and from time to time condition its agent or attorney in fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name.
(e) The Collateral Agent shall not be responsible for any willful misconduct or negligence on the part undertaking of any agent appointed with due care and in good faith pursuant action or executing any document upon the provision to this Sectionit by Borrower and/or the Lenders of such assurances or financial accommodations as it may reasonably determine to be necessary for the protection of its interest.
Appears in 1 contract
Appointment of Collateral Agent. (a) Notwithstanding Each Investor hereby authorizes Xx. Xxxxxx Xxxxxxxx (“Xxxxxx Xxxxxxxx”) to act as collateral agent (“Collateral Agent”) on behalf of the Investor and any other provisions Investors of this the Notes, and in such capacity to enter into the Security Agreement and to exercise for the benefit of the Investor all rights, powers and remedies provided to it, under or pursuant to the Security Agreement including, without limitation, those available upon an Event of Default (as defined in the Notes), subject always to the terms, conditions, limitations and restrictions provided in the Security Agreement. Except with respect to actions as to which the Collateral Agent is expressly required to act under the terms of the Security Agreement, at any the Investor hereby agrees that the Collateral Agent may act or refrain from acting thereunder with the consent, in writing of the Requisite Holders, and that the Requisite Holders shall have the right to direct the time, method and place of conducting any proceeding for any right or remedy available to the purpose Collateral Agent; provided, however, that such direction shall not be in conflict with any rule of meeting any legal requirement law or expose the Collateral Agent to personal liability, such direction shall not be unduly prejudicial to the rights of any jurisdiction non-consenting holder, and the Collateral Agent may take any action deemed proper by the Collateral Agent, in which its discretion, that is not inconsistent with such direction or the terms of the Security Agreement. The Investor agrees that the duties of the Collateral Agent are only such as are specifically provided in the Security Agreement, and the Collateral Agent shall have no other duties, implied or otherwise. The appointment of Xxxxxx Xxxxxxxx as Collateral Agent shall be deemed accepted by Xxxxxx Xxxxxxxx, and it shall be and become obligated to the extent provided in the Security Agreement, only upon the execution and delivery of the Security Agreement by Xxxxxx Xxxxxxxx and the Borrowers.
(b) Each Investor agrees that the Collateral Agent may consult with counsel of its choice and shall not be responsible or liable for any action taken, suffered or omitted to be taken by it in good faith in accordance with the advice of such counsel (subject to the exceptions set forth in the next two sentences). The Investor further agrees that the Collateral may at Agent shall not incur liability for any action or omission to act by it unless the time be located and for purposes Collateral Agent’s conduct constitutes willful misconduct or gross negligence. During the continuance of enforcementan Event of Default, the Collateral Agent shall have be required to use the power same degree of care and may execute skill in its exercise of its powers and deliver all instruments to appoint one or more Persons to act performance of its duties as its agent of a prudent person would exercise under the Secured Parties of all or any part of circumstances in the Collateral, and to vest in such Person or Persons, in such capacity and for the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereof, and such powers, duties, obligations, rights and trusts as the Collateral Agent may consider necessary or desirable, provided that the appointment conduct of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant to this Agreement.
(b) All rights and powers, conferred or imposed upon the Collateral Agent may be conferred or imposed upon and may be exercised or performed by an agentperson’s own affairs.
(c) Any notice, request None of the provisions of this Agreement or other writing given the Security Agreement shall be construed to require the Collateral Agent to expend or risk its own funds or otherwise to incur any liability (financial or otherwise) in the performance of any of its duties hereunder or thereunder, or in the exercise of any of its rights or powers unless it shall be deemed to have been given to each satisfied that one or more of the agents Debtor (as effectively as if given defined in the Security Agreement) and the Investors are at the time obligated and in a financial position to each pay the Collateral Agent’s reasonably anticipated fees for its services and its out-of-pocket expenses (including fees of themits counsel) in the performance of such duties or the exercise of any of such rights or powers and to indemnify it against such risk or liability. Every instrument appointing In no event shall the Collateral Agent be liable for (i) any agents consequential, punitive or special damages or (ii) the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians. The Collateral Agent shall refer to this Agreementnot incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder or thereunder by reason of any occurrence beyond the control of the Collateral Agent (including, but not limited to, any act or provision of any present or future law or regulation or governmental authority, any act of God or war, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility).
(d) Any agent may at any time appoint Each Investor agrees that the Collateral Agent as its agent shall not be required or attorney bound to make any investigation into the facts or matters stated in fact with full power and authorityany resolution, to certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document. The Collateral Agent may execute any of the extent not prohibited by law, to do any lawful act powers under or in respect of this Agreement or the Security Agreement or perform any duties hereunder or thereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible or liable for the acts or omissions, including any willful misconduct or gross negligence, on its behalf and in its namethe part of any agent, attorney, custodian or nominee so appointed.
(e) The Borrowers covenant and agree, for the benefit of the Investor and any other purchasers of the Notes, and as an additional obligation secured under the Security Agreement, to be responsible to pay to the Collateral Agent from time to time, and the Collateral Agent shall not be entitled to, fees and expenses as provided in the Security Agreement.
(f) The Borrowers agree, for the benefit of the Investors, and as an additional obligation secured under the Security Agreement, to be responsible for to indemnify and hold the Collateral Agent and its directors, employees, officers, agents, successors and assigns harmless from and against any willful misconduct or negligence and all losses, claims, damages, liabilities and expenses, including, without limitation, reasonable costs of investigation and reasonable counsel fees and expenses that may be imposed on the part Collateral Agent or incurred by it in connection with its acceptance of its appointment as the Collateral Agent hereunder or under the Security Agreement or the performance of its duties thereunder, except as a result of the Collateral Agent’s gross negligence or willful misconduct. Such indemnity includes, without limitation, all losses, damages, liabilities and expenses (including reasonable counsel fees and expenses) incurred in connection with any litigation (whether at the trial or appellate levels) arising from this Agreement or the Security Agreement or involving the subject matter hereof or thereof.
(g) The Investors agree that Xxxxxx Xxxxxxxx or any successor may at any time resign as Collateral Agent by giving written notice thereof to the Company at least 20 business days prior to the date of such proposed resignation. Upon receiving such notice of resignation, the Investors shall promptly appoint a successor collateral agent appointed by written instrument executed by the Requisite Holders a copy of which shall be delivered to the resigning Collateral Agent and a copy to the successor collateral agent. If an instrument of acceptance by a successor collateral agent shall not have been delivered to the Collateral Agent within 20 business days after giving such notice of resignation, the resigning Collateral Agent may petition any court of competent jurisdiction for the appointment of a successor collateral agent. Such court may thereupon, after such notice, if any, as it may deem proper, appoint a successor collateral agent. The Collateral Agent may be removed at any time by written action by the Requisite Holders, delivered to the Collateral Agent and to the Company. If the Collateral Agent shall be so removed, the Requisite Holders shall promptly appoint a successor collateral agent in accordance with due care and the procedures set forth in good faith pursuant to this SectionSection 7.1(g).
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Cardium Therapeutics, Inc.)
Appointment of Collateral Agent. (a) Notwithstanding any other provisions of this Agreement, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any Collateral may at the time be located and for purposes of enforcement, the Collateral Agent shall have the power and may execute and deliver all instruments to appoint one or more Persons to act as its agent of the Secured Parties of all or any part of the Collateral, and to vest in such Person or Persons, in such capacity and for the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereof, and such powers, duties, obligations, rights and trusts as the Collateral Agent may consider necessary or desirable, provided that the appointment of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant to this Agreement.
(b) All rights and powers, conferred or imposed upon the Collateral Agent may be conferred or imposed upon and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to the Collateral Agent shall be deemed to have been given to each of the agents as effectively as if given to each of them. Every instrument appointing any agents shall refer to this Agreement.. Gerdau Export and Working Capital Agreement
(d) Any agent may at any time appoint the Collateral Agent as its agent or attorney in fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name.
(e) The Collateral Agent shall not be responsible for any willful misconduct or negligence on the part of any agent appointed with due care and in good faith pursuant to this Section.. ARTICLE XIII MISCELLANEOUS Section 13.1
Appears in 1 contract
Samples: Senior Export and Working Capital Facility Agreement
Appointment of Collateral Agent. (a) Notwithstanding The Lender and the Collars Office hereby irrevocably appoint and authorize the Collateral Agent to take such action on their behalf and to exercise such powers under this Agreement as are delegated to the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental thereto.
(b) The Secured Parties (other than the Collateral Agent) shall indemnify the Collateral Agent (to the extent not reimbursed by the Pledgor) against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent's gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with any action taken or omitted by the Collateral Agent hereunder.
(c) So long as any Collar Loans are outstanding, the Collateral Agent shall follow the instructions of the Lender with respect to the Collateral. The Collateral Agent may consult with legal counsel, independent public accountants and other provisions experts selected by it and shall not be liable for any <PAGE> action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents, or employees shall be liable for any action taken or not taken by it in connection with this AgreementAgreement with the consent or at the request of the Secured Parties (other than the Collateral Agent) or in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur any liability by acting in reliance upon any notice, at consent, certificate, statement, or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or parties.
(e) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business and assets as a whole or substantially as a whole, or any timecorporation or association resulting from any such conversion, for sale, merger, consolidation or transfer to which it is a party, shall, subject to the purpose prior written consent of meeting any legal requirement the Secured Parties, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any jurisdiction instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
(f) Beyond the exercise of reasonable care in which any Collateral may at the time be located and for purposes of enforcementcustody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the power and may execute and deliver all instruments to appoint one possession or more Persons to act as its agent control of the Secured Parties of all any agent, bailee, clearing corporation or securities intermediary or any part of the Collateral, and to vest in such Person income thereon or Persons, in such capacity and for the benefit or on behalf of the Secured Parties, such title as to the Collateral, preservation of rights against prior parties or any part thereof, and such powers, duties, obligations, other rights and trusts as the Collateral Agent may consider necessary or desirable, provided that the appointment of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant to this Agreement.
(b) All rights and powers, conferred or imposed upon the Collateral Agent may be conferred or imposed upon and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to the pertaining thereto. The Collateral Agent shall be deemed to have been given to each exercised reasonable care in the custody and preservation of the agents as effectively as Collateral if given the Collateral is accorded treatment substantially equal to each that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of them. Every instrument appointing the Collateral, or for any agents shall refer to this Agreement.
(d) Any agent may at diminution in the value thereof, by reason of the act or omission of any time appoint agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent as its agent or attorney in fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name.
(e) The Collateral Agent shall not be responsible for any willful misconduct or negligence on the part of any agent appointed with due care and in good faith pursuant to this Section(or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent).
Appears in 1 contract
Samples: Pledge and Security Agreement (Solitario Resources Corp)
Appointment of Collateral Agent. (a) Notwithstanding The Lender and the Options Office hereby irrevocably appoint and authorize the Collateral Agent to take such action on their behalf and to exercise such powers under this Agreement as are delegated to the Collateral Agent by the terms hereof, together with all such powers as are reasonably incidental thereto.
(b) The Secured Parties (other than the Collateral Agent) shall indemnify the Collateral Agent (to the extent not reimbursed by the Pledgor) against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Collateral Agent's gross negligence or willful misconduct) that the Collateral Agent may suffer or incur in connection with any action taken or omitted by the Collateral Agent hereunder.
(c) So long as any Option Loans are outstanding, the Collateral Agent shall follow the instructions of the Lender with respect to the Collateral. The Collateral Agent may consult with legal counsel, independent public accountants and other provisions experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
(d) Neither the Collateral Agent nor any of its directors, officers, agents, or employees shall be liable for any action taken or not taken by it in connection with this AgreementAgreement with the consent or at the request of the Secured Parties (other than the Collateral Agent) or in the absence of its own gross negligence or willful misconduct. The Collateral Agent shall not incur any liability by acting in reliance upon any notice, at consent, certificate, statement, or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or parties.
(e) Any corporation or association into which the Collateral Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its agency business and assets as a whole or substantially as a whole, or any timecorporation or association resulting from any such conversion, for sale, merger, consolidation or transfer to which it is a party, shall, subject to the purpose prior written consent of meeting any legal requirement the Secured Parties, be and become a successor Collateral Agent hereunder and vested with all of the title to the Collateral and all of the powers, discretions, immunities, privileges and other matters as was its predecessor without, except as provided above, the execution or filing of any jurisdiction instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
(f) Beyond the exercise of reasonable care in which any Collateral may at the time be located and for purposes of enforcementcustody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the power and may execute and deliver all instruments to appoint one possession or more Persons to act as its agent control of the Secured Parties of all any agent, bailee, clearing corporation or securities intermediary or any part of the Collateral, and to vest in such Person income thereon or Persons, in such capacity and for the benefit or on behalf of the Secured Parties, such title as to the Collateral, preservation of rights against prior parties or any part thereof, and such powers, duties, obligations, other rights and trusts as the Collateral Agent may consider necessary or desirable, provided that the appointment of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant to this Agreement.
(b) All rights and powers, conferred or imposed upon the Collateral Agent may be conferred or imposed upon and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to the pertaining thereto. The Collateral Agent shall be deemed to have been given to each exercised reasonable care in the custody and preservation of the agents as effectively as Collateral if given the Collateral is accorded treatment substantially equal to each that which it accords its own property, and shall not be liable or responsible for any loss or damage to any of them. Every instrument appointing the Collateral, or for any agents shall refer to this Agreement.
(d) Any agent may at diminution in the value thereof, by reason of the act or omission of any time appoint agent, bailee, clearing corporation or securities intermediary selected by the Collateral Agent as its agent or attorney in fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name.
(e) The Collateral Agent shall not be responsible for any willful misconduct or negligence on the part of any agent appointed with due care and in good faith pursuant to this Section(or selected by an agent, bailee, clearing corporation or securities intermediary so selected by the Collateral Agent).
Appears in 1 contract
Appointment of Collateral Agent. (a) Notwithstanding Each Person comprising “Lessor” hereunder hereby irrevocably appoints HCP (the “Collateral Agent”) as the collateral agent hereunder and under all other documents related hereto and authorizes Collateral Agent in such capacity, to take such actions on its behalf and to exercise such powers as are delegated to Collateral Agent in such capacity by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. In performing its functions and duties hereunder, Collateral Agent shall act for itself and as agent for each Person comprising “Lessor” hereunder and does not assume and shall not be deemed to have assumed any other obligation towards or relationship of agency or trust with or for Lessee. The provisions of this Agreement, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any Collateral may at the time be located and for purposes of enforcement, the Collateral Agent shall have the power and may execute and deliver all instruments to appoint one or more Persons to act as its agent of the Secured Parties of all or any part of the Collateral, and to vest in such Person or Persons, in such capacity and Section 16.8.2 are solely for the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereofCollateral Agent and each Person comprising “Lessor” hereunder, and such powers, duties, obligations, Lessee shall have no rights and trusts as the Collateral Agent may consider necessary or desirable, provided that the appointment a third party beneficiary(ies) of any of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant to this Agreementprovisions.
(b) All rights and powers, conferred or imposed upon the The Collateral Agent may be conferred perform any and all of its duties and exercise its rights and powers hereunder by or imposed upon and may be exercised through any one or performed more sub-agents appointed by an agentthe Collateral Agent.
(c) Any noticeThe Collateral Agent may at any time give notice of its resignation to the Persons comprising “Lessor” hereunder and Lessee. Upon receipt of any such notice of resignation, request or other writing given the Persons comprising “Lessor” hereunder shall have the right to appoint a successor Collateral Agent. If no such successor shall have been so appointed by the Persons comprising “Lessor” hereunder and shall have accepted such appointment within ten (10) days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of each Person comprising “Lessor” hereunder, appoint a successor Collateral Agent; provided that if the Collateral Agent shall notify Lessee and each Person comprising “Lessor” hereunder that no such successor is willing to accept such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (i) the retiring Collateral Agent shall be deemed discharged from its duties and obligations hereunder (except that in the case of any Collateral held by the Collateral Agent on behalf of each Person comprising “Lessor” hereunder, the Collateral Agent may continue to have been given hold such Collateral until such time as a successor Collateral Agent is appointed and such Collateral is assigned to such successor Collateral Agent) and (ii) all payments, communications and determinations provided to be made by, to or through the Collateral Agent shall instead be made by or to each of Person comprising “Lessor” hereunder directly, until such time as the agents as effectively as if given to each of them. Every instrument appointing any agents shall refer to this AgreementPersons comprising “Lessor” hereunder appoint a successor Collateral Agent.
(d) Any agent may at any time appoint Upon the acceptance of a successor’s or replacement’s appointment as Collateral Agent, such successor or replacement shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Collateral Agent as and the retiring Collateral Agent shall be discharged from all of its agent or attorney duties and obligations hereunder. After the retiring Collateral Agent’s resignation hereunder, the provisions of this Section 16.8.2 shall continue in fact with full power effect for the benefit of such retiring Collateral Agent and authority, to the extent not prohibited by law, to do any lawful act under or its sub-agents in respect of this Agreement on its behalf and in its name.
(e) The any actions taken or omitted to be taken by any of them while the retiring Collateral Agent shall not be responsible for any willful misconduct or negligence on the part of any agent appointed with due care and was acting in good faith pursuant to this Sectionsuch capacity.
Appears in 1 contract
Samples: Master Transactions and Cooperation Agreement (Brookdale Senior Living Inc.)
Appointment of Collateral Agent. (a) Notwithstanding any other provisions of this Agreement, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any Collateral may at the time be located and for purposes of enforcement, the Collateral Agent shall have the power and may execute and deliver all instruments to appoint one or more Persons to act as its agent Each of the Secured Parties of all or any part hereby agrees that one designated member of the CollateralSecured Parties shall act as the initial collateral agent (the “Collateral Agent”), and to vest in such Person or Personswhich individual shall initially be Xxxxx Xxxxxxx, in such capacity and for the benefit of the Secured Parties in connection with the protection of the Collateral and all matters relating to any security interest, from time to time, securing the Obligations, and no Secured Party shall have any right individually to exercise any rights or on behalf remedies with respect to the Collateral. The Collateral Agent shall be fully indemnified by each of the Secured Parties, such title to the Collateralon a pro rata basis, or for any part thereof, and such powers, dutiesliabilities, obligations, rights losses, damages, penalties, actions, judgments, suits, claims, tax liabilities, broker’s or finder’s fees, out-of-pocket costs, expenses and trusts as disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for the Collateral Agent may consider necessary in connection with any investigative, administrative or desirablejudicial proceeding commenced or threatened, provided that the appointment of such agent shall be subject to the approval of the Administrative Agent, which approval shall whether or not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant to this Agreement.
(b) All rights and powers, conferred or imposed upon the Collateral Agent may be conferred or imposed upon and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to the Collateral Agent shall be deemed designated a party thereto) that may be imposed on, incurred by, or asserted against the Collateral Agent, in any manner relating to or arising out of or incurred by the Collateral Agent in connection with the Collateral Agent’s actions as the Secured Parties’ collateral agent; provided, however, that the Secured Parties shall have been given no obligation to each the Collateral Agent under this Section with respect to liabilities arising from the gross negligence or willful misconduct of the agents Collateral Agent while acting as effectively the collateral agent for the Secured Parties, as if given determined by a court of competent jurisdiction. Notwithstanding the foregoing, in no event shall the indemnification obligation of any Secured Party under the preceding sentence exceed the original principal amount of such Secured Party’s Notes. The relationship between the Collateral Agent and the Secured Parties is that of agent and principal only, and nothing contained in this Agreement or otherwise shall be construed to each of them. Every instrument appointing any agents shall refer to this Agreement.
(d) Any agent may at any time appoint constitute the Collateral Agent as its agent a trustee or attorney in fact with full power and authority, to the extent not prohibited by law, to do fiduciary for any lawful act under or in respect of this Agreement on its behalf and in its name.
(e) Secured Party. The Collateral Agent may resign at any time upon notice to the Secured Parties and the Company (in which case a majority in interest of the Secured Parties shall not be responsible for promptly appoint a replacement), and a majority in interest of the Secured Parties may replace the Collateral Agent at any willful misconduct or negligence on time upon written notice to the part of any agent appointed with due care Collateral Agent and in good faith pursuant to this Sectionthe Secured Parties.
Appears in 1 contract
Appointment of Collateral Agent. (a) Notwithstanding any other provisions Each Secured Party hereby irrevocably appoints and designates Wachovia as Collateral Agent to act as herein specified. Wachovia hereby accepts such appointment on the terms and conditions set forth herein. Each Secured Party hereby authorizes Collateral Agent to enter into all of this Agreement, at any timethe Security Documents, for the purpose benefit of meeting the Secured Parties in accordance with the terms hereof, and to exercise such rights and powers under this Agreement and the Security Documents as are specifically delegated to Collateral Agent by the terms hereof and thereof, together with such other rights and powers as are reasonably incidental thereto or as are customarily and typically exercised by agents performing duties similar to the duties of Collateral Agent hereunder and under the Security Documents, subject, however, to any legal requirement express limitations set forth herein or in the Security Documents. The duties of Collateral Agent shall be deemed ministerial and administrative in nature, and Collateral Agent shall not have, by reason of this Agreement or any of the Security Documents, a fiduciary relationship with any Secured Party (or any Secured Party's participants or Affiliates).
(b) Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Agreement or be required to take, initiate, or conduct any litigation, foreclosure, collection proceedings, or other Enforcement Action or take action under any of the Security Documents, except pursuant to an Enforcement Direction during the continuance of any jurisdiction Material Event of Default. The conferral upon Collateral Agent of any right or power hereunder or under any of the Security Documents shall not imply a duty on Collateral Agent's part to exercise such right or power, unless directed to do so by the Required Secured Parties in which accordance with this Agreement. Collateral Agent may take, but shall have no obligation to take, any action under the Security Documents or otherwise as it shall deem to be in the best interests of Secured Parties in order to maintain, protect, or preserve the Collateral may at and the time be located and for purposes rights of enforcementSecured Parties with respect thereto, including the curing of any default under the Security Documents, the discharge of any tax or charge resulting in a Lien upon any Collateral, or the payment of insurance premiums with respect to insurance required to be maintained by Obligors under any of the Security Documents; provided, however, that, in the absence of an Enforcement Direction, Collateral Agent shall not be authorized to foreclose upon any Lien with respect to any of the Collateral or take any other Enforcement Action with respect to the Collateral or any part thereof. Collateral Agent may perform any of its duties by or through its agents and employees and may employ one or more Agent Professionals to advise or assist it from time to time, but shall not be responsible for the negligence or misconduct of any such Agent Professionals selected by it with reasonable care.
(c) The rights, remedies, powers, and privileges conferred upon Collateral Agent hereunder and under the Security Documents may be exercised by Collateral Agent without the necessity of the joinder of any other Party, unless otherwise required by Applicable Law. If Collateral Agent shall request instructions from the Required Secured Parties with respect to any act or action (including the failure to act) in connection with this Agreement or any of the Security Documents, Collateral Agent shall be entitled to refrain from such act or taking such action, unless and until Collateral Agent shall have received unambiguous instructions from the power and may execute and deliver all instruments to appoint one or more Persons Required Secured Parties (in which event it shall be required to act in accordance with such instructions unless otherwise excused, as its agent provided herein); and Collateral Agent shall not incur any liability to any Person for so refraining. Without limiting the foregoing, no Secured Party shall have any right of action whatsoever against Collateral Agent as a result of Collateral Agent's acting or refraining from acting hereunder or under any of the Security Documents pursuant to or in accordance with the instructions of the Required Secured Parties of all Parties, except for Collateral Agent's own gross negligence or willful misconduct in connection with any action taken, or omitted to be taken by it. Notwithstanding anything to the contrary contained in this Agreement or any part of the Security Documents, Collateral Agent shall not be required to take any action that is, in its opinion, contrary to Applicable Law or the terms of any of the Security Documents or that would, in its reasonable opinion, subject it or any of its officers, employees, or directors to personal liability.
(d) Collateral Agent shall not be responsible in any manner whatsoever for the correctness of any recitals, statements, representations, or warranties contained herein, in any of the Security Documents or the Transaction Documents. Collateral Agent makes no representation or warranty as to (i) the value, location, existence, or condition of any Collateral; (ii) the financial condition of any Obligor or the title of any of the Obligors to any of the Collateral, and to vest in such Person or Persons, in such capacity and for ; (iii) the benefit or on behalf sufficiency of the Secured Partiessecurity afforded by this Agreement or the Security Documents; (iv) the validity, such title perfection, or priority of any Lien with respect to the Collateral, or (v) the validity, proper execution, enforceability, legality, or sufficiency of this Agreement, the Guarantee and Collateral Agreement, or any part thereof, of the other Security Documents; and such powers, duties, obligations, rights and trusts as the Collateral Agent may consider necessary shall have no liability or desirable, provided that the appointment responsibility in respect of any such agent shall be subject to the approval of the Administrative Agent, which approval matters. Collateral Agent shall not be unreasonably withheld, and provided further, that any such agent shall agree required to be liable ascertain or inquire as to the Secured Parties to the extent the Collateral Agent is so liable pursuant to this Agreement.
(b) All rights and powers, conferred performance by any Obligor of any of its covenants or imposed upon the Collateral Agent may be conferred obligations hereunder or imposed upon and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to the Collateral Agent shall be deemed to have been given to each under any of the agents as effectively as if given to each of them. Every instrument appointing any agents shall refer to this Agreement.
(d) Any agent may at any time appoint the Collateral Agent as its agent Transaction Documents or attorney in fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its nameSecurity Documents.
(e) The Collateral Agent shall not be responsible for insuring any willful misconduct of the Collateral, for the payment of taxes, charges, assessments, or negligence on Liens upon any of the part Collateral or for the maintenance or safeguarding of any Collateral, except as provided in the immediately following sentence when Collateral Agent has possession of any Collateral. Collateral Agent shall have no duty to any of the Obligors or Secured Parties with respect to any Collateral in Collateral Agent's possession or control or in the possession or control of any agent appointed or nominee of Collateral Agent or any income thereon or for the preservation of rights against prior parties or any other rights pertaining thereto, except the duty to accord such Collateral in Collateral Agent's actual possession substantially the same degree of care as Collateral Agent accords its own assets and the duty to account for monies received by it.
(f) Collateral Agent shall not be deemed to have actual, constructive, direct, or indirect notice or knowledge of the occurrence of any Event of Default under any Transaction Document, unless and until Collateral Agent shall have received a Default Notice or a written notice from any of the Obligors addressed to Collateral Agent in its capacity as Collateral Agent, stating unequivocally that an Event of Default has occurred. Collateral Agent shall have no obligation, either prior to or after receiving any such notice, to inquire whether an Event of Default has, in fact, occurred and shall be entitled to rely conclusively, and shall be fully protected in so relying, upon any notice so furnished to it.
(g) If Collateral Agent shall receive any written request from any Obligor for consent to or approval of any matter relating to any Collateral or such Obligor's obligations with respect thereto or there shall be due care from Collateral Agent under the provisions of the Security Documents any performance or the delivery of any instrument, then, in such event, Collateral Agent shall send to each of the Notice Parties a notice setting forth in reasonable detail (i) an account of the matter as to which such consent or approval has been requested or the performance or instrument requested, as the case may be, and (ii) Collateral Agent's proposed course of action with respect thereto and the Collateral Agent shall take action with respect to such requested consent or approval at the direction of the Required Secured Parties. Notwithstanding the foregoing, no such consent or approval of Secured Parties shall be required with respect to any action taken in accordance with the provisions of Section 9 hereof or with respect to any consent, determination, or other matter that is, in Collateral Agent's reasonable judgment, ministerial or administrative in nature.
(h) Each Secured Party hereby acknowledges and represents that it has, independently and without reliance upon Collateral Agent or any of the other Secured Parties, and based upon such documents, information, and analyses as it has deemed appropriate, made its own credit analysis of each Obligor and its own decision to enter into this Agreement and the other Transaction Documents to which it is a party, and each Secured Party has made such inquiries concerning the Transaction Documents, the Security Documents, the Collateral, and each Obligor as such Secured Party feels necessary and appropriate. Each Secured Party hereby acknowledges that it shall, independently and without reliance upon the other Secured Parties or Collateral Agent, and based upon such financial statements, documents, and information as it deems appropriate at the time, continue to make and rely upon its own credit decisions in extending credit or in taking or refraining to take any action under this Agreement or any of the Transaction Documents. Except for notices and reports expressly required to be furnished to Notice Parties by Collateral Agent hereunder, Collateral Agent shall not have any duty or responsibility to provide any Secured Party with any notices, reports, or certificates furnished to Collateral Agent by any Obligor or any credit or other information concerning the affairs, financial condition, business, or properties of any Obligor that may come into the possession of Collateral Agent or any of Collateral Agent's Affiliates.
(i) Collateral Agent shall be fully entitled to rely upon, and shall be fully protected in relying and acting upon, any communication in whatever form believed by Collateral Agent in good faith pursuant to this Sectionbe genuine and correct and to have been signed, sent, or made by a proper Person or Persons.
Appears in 1 contract
Appointment of Collateral Agent. MHR Capital Partners LP (a“MHR”) Notwithstanding is hereby appointed to act on behalf of all the Holders as collateral agent (the “Collateral Agent”) under this Agreement and the Notes. The provisions of this Section 7 are solely for the benefit of Collateral Agent and the Holders and no other person shall have any rights as a third party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement and the Notes, Collateral Agent shall act solely as agent of the Holders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for the Issuers or any other provisions person. The Collateral Agent shall have no duties or responsibilities except for those expressly set forth in this Agreement and the Notes. The duties of the Collateral Agent shall be mechanical and administrative in nature and the Collateral Agent shall not have, or be deemed to have, by reason of this Agreement, at any time, for the purpose of meeting any legal requirement other Transaction Document or otherwise a fiduciary relationship in respect of any jurisdiction Holder. Except as expressly set forth in which any Collateral may at this Agreement and the time be located and for purposes of enforcementNotes, the Collateral Agent shall not have the power any duty to disclose, and may execute and deliver all instruments shall not be liable for failure to appoint one or more Persons disclose, any information relating to act as its agent any of the Secured Parties of all Issuers or any part of the Collateral, and their respective Subsidiaries that is communicated to vest in such Person or Persons, in such capacity and for the benefit or on behalf of the Secured Parties, such title to the Collateral, obtained by MHR or any part thereof, and such powers, duties, obligations, rights and trusts as of its Affiliates in any capacity. Neither the Collateral Agent may consider necessary nor any of its Affiliates nor any of their respective officers, directors, employees, agents or desirable, provided that the appointment of such agent representatives shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties any Holder for any action taken or omitted to the extent be taken by it hereunder or under any other Transaction Document, or in connection herewith or therewith, except for damages caused by its or their own gross negligence or willful misconduct. If the Collateral Agent is so liable pursuant shall request instructions from the Holders holding a majority of the outstanding principal amount of the Notes (the “Required Holders”) or all affected Holders with respect to any act or action (including failure to act) in connection with this Agreement.
(b) All rights and powersAgreement or the Notes, conferred or imposed upon the Collateral Agent may be conferred or imposed upon and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to then the Collateral Agent shall be deemed entitled to refrain from such act or taking such action unless and until such Collateral Agent shall have been given received instructions from the Required Holders or all affected Holders, as the case may be, and the Collateral Agent shall not incur liability to each any person by reason of so refraining. The Collateral Agent shall be fully justified in failing or refusing to take any action hereunder or under the Notes (a) if such action would, in the opinion of the agents as effectively as Collateral Agent, be contrary to law or the terms of this Agreement or the Notes, (b) if given such action would, in the opinion of such Agent, expose the Collateral Agent to each any liabilities under any environmental laws, rules or ordinances or (c) if the Collateral Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of themtaking or continuing to take any such action. Every instrument appointing Without limiting the foregoing, no Holder shall have any agents shall refer to this Agreement.
(d) Any agent may at any time appoint right of action whatsoever against the Collateral Agent as its agent or attorney in fact with full power and authority, to a result of the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name.
(e) The Collateral Agent shall not be responsible for any willful misconduct acting or negligence on refraining from acting hereunder or under the part Notes in accordance with the instructions of any agent appointed with due care and in good faith pursuant to this SectionRequired Holders or all affected Holders, as applicable.
Appears in 1 contract
Samples: Investment Unit Purchase Agreement (NationsHealth, Inc.)
Appointment of Collateral Agent. (a) Notwithstanding any other provisions Each Co-Agent and each Lender hereby designates SunTrust as Collateral Agent and hereby authorizes the Collateral Agent to enter into each of this the Security Documents substantially in the form attached hereto and to the Letter of Credit Agreement, at any time, and to take all action contemplated thereby. All rights and remedies under the Security Documents may be exercised by the Collateral Agent for the purpose benefit of meeting the Co-Agents and the Lenders and the other beneficiaries thereof upon the terms thereof. The Co-Agents and the Lenders further agree that the Collateral Agent may assign its rights and obligations as Collateral Agent under any legal requirement of the Security Documents to any affiliate of the Collateral Agent or to any trustee, which assignee in each such case shall (subject to compliance with any requirements of applicable law governing the assignment of such Security Documents) be entitled to all the rights of the Collateral Agent under and with respect to the applicable Security Document.
(b) In each circumstance where, under any provision of any jurisdiction in which any Collateral may at the time be located and for purposes of enforcementSecurity Document, the Collateral Agent shall have the power and may execute and deliver all instruments right to appoint one grant or more Persons to act as its agent of the Secured Parties of all withhold any consent, exercise any remedy, make any determination or direct any part of the Collateral, and to vest in such Person or Persons, in such capacity and for the benefit or on behalf of the Secured Parties, such title to the Collateral, or any part thereof, and such powers, duties, obligations, rights and trusts as action by the Collateral Agent may consider necessary or desirableunder such Security Document, provided that the appointment of such agent shall be subject to the approval of the Administrative Agent, which approval shall not be unreasonably withheld, and provided further, that any such agent shall agree to be liable to the Secured Parties to the extent the Collateral Agent is so liable pursuant shall act in respect of such consent, exercise of remedies, determination or action, as the case may be, with the consent of and at the direction of the Required Lenders; provided, however, that no such consent of the Required Lenders shall be required with respect to this Agreement.
(b) All rights and powersany consent, conferred determination or imposed upon other matter that is, in the Collateral Agent's judgment, ministerial or administrative in nature; provided further that in no event shall the Collateral Agent may be conferred required, and in all cases shall be fully justified in failing or imposed upon refusing, to take any action under or pursuant to any Security Document which, in the reasonable opinion of the Collateral Agent, (i) would be contrary to the terms of any Security Document or would subject it or its officers, employees, or directors to liability, unless and may be exercised or performed by an agent.
(c) Any notice, request or other writing given to until the Collateral Agent shall be deemed indemnified or tendered security to have been given its satisfaction by the Lenders against any and all loss, cost, expense or liability in connection therewith, or (ii) would be contrary to law, in each case anything herein or elsewhere contained to the contrary notwithstanding. In each circumstance where any consent of or direction from the agents as effectively as if given to each of them. Every instrument appointing any agents shall refer to this Agreement.
(d) Any agent may at any time appoint Required Lenders is required, the Collateral Agent as its agent or attorney in fact with full power and authority, shall send to the extent not prohibited by law, Lenders a notice setting forth a description in reasonable detail of the matter as to do any lawful act under which consent or in direction is requested and the Collateral Agent's proposed course of action with respect of this Agreement on its behalf and in its name.
(e) The thereto. In the event the Collateral Agent shall not have received a 103 response from any Lender within five (5) Business Days after such Lender's receipt of such notice, such Lender shall be responsible for any willful misconduct or negligence on deemed to have agreed to the part course of any agent appointed with due care and in good faith pursuant to this Sectionaction proposed by the Collateral Agent.
Appears in 1 contract
Samples: Credit Agreement (Interface Inc)
