Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. (b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture. (c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent: (i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing; (ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise; (iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity; (iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent; (v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and (vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law. (d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent. (e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement. (f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing. (g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby. (h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification. (i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate. (j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 4 contracts
Samples: Indenture (Qwest Corp), Indenture (Qwest Corp), Indenture (Qwest Corp)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture Trustee and each of the Holders by acceptance of the Securities hereby authorize the appointment of the Collateral Agent as the Trustee’s and the Holders’ Collateral Agent under the Security Documents, and the Trustee and each of the Holders by acceptance of the Securities hereby irrevocably authorize the Collateral Agent to enter into the Security Documents and the Intercreditor Agreements Agreement and to take such action on their behalf under the provisions of the Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement Security Documents and the Collateral DocumentsIntercreditor Agreement, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holderstogether with such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or Indenture, the Security Documents and the Intercreditor Agreement, the duties of the Collateral DocumentsAgent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth in this Indentureherein, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Security Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and the Intercreditor Agreement or as requested by the Majority Holders (subject to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documentsSection 11.05), (B) agrees that the Liens on the Collateral securing the Obligations nor shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized have or be deemed to take have any trust or refrain from taking any actions in accordance fiduciary relationship with the terms Trustee, any Holder, the Company or any Collateral Grantor, either before or after the occurrence of an Event of Default, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents and the Intercreditor AgreementAgreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing and subject sentence, the use of the term “agent” in this Indenture with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom, and is continuing;
(ii) shall not have any duty intended to take any discretionary action create or exercise any discretionary powersreflect only an administrative relationship between independent contracting parties. For the avoidance of doubt, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall nothave no discretion under this Indenture, except as expressly set forth in the Collateral Documents, have any duty to disclose, Intercreditor Agreement or the Security Documents and shall not be liable for required to make or give any determination, consent, approval, request or direction without the failure to disclosewritten direction of the Holders of a majority in aggregate principal amount of the then outstanding Notes or the Trustee, any information relating to the Issuer or any of its Affiliates that as applicable. The Trustee is communicated to or obtained authorized and directed by the person serving Holders and the Holders by acquiring the Securities are deemed to have authorized the Trustee, as applicable, to cause the Collateral Agent or any of to enter into and perform its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with obligations under the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of Security Documents and the Intercreditor Agreement or any other Collateral DocumentAgreement. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless is authorized and until written notice describing such Event of Default is given directed by the Trustee or and the Issuer Holders and received the Holders by a Responsible Officer of acquiring the Securities are deemed to have authorized the Collateral Agent;
, to (vi) shall not be responsible for or have any duty to ascertain or inquire enter into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Security Documents to which it is a party and all agreementsthe Intercreditor Agreement, power of attorney, documents (ii) bind the Trustee and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of terms as set forth in such Security Documents and the Intercreditor Agreement. Holders may notAgreement and (iii) perform and observe its obligations and exercise its rights and powers under such Security Documents, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act including entering into amendments and other modifications permitted by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, the Intercreditor Agreement or (ii) payments the Security Documents. Each Holder, by its acceptance of a Security, is deemed to have consented and agreed to the terms of each Security Document and the Intercreditor Agreement, as originally in effect and as amended, restated, replaced or modified from time to time in accordance with its terms or the terms of this Indenture. The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent in excess of the amount required to be paid to shall have received written notice from the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, or unless a written notice of any event which is in kind, and with fact such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied a Default is received by the Collateral Agent pursuant at the address specified in Section 13.01, and such notice references the Securities and this Indenture. The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the terms of Trustee in accordance with Article 6 or the Majority Holders (subject to this Indenture and the Intercreditor Agreement.
(f) Section 11.05). The Collateral Agent shall have no obligation and makes no representation whatsoever to the Trustee or any of the Holders as to assure the existence, genuineness, value or protection of the Collateral or the sufficiency of any Security Documents, or that the Collateral exists or is owned by any Issuer or Guarantor of the Collateral Grantors or is cared for, protected, protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any GuarantorCollateral Grantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, disclosure or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral other Security Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding . The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act. For the avoidance of doubt, nothing herein shall require the Collateral Agent to file financing statements or continuation statements, to record any documents or instruments in any public office at any time or be responsible for perfection or maintaining the perfection of the security interests purported to be created by the Security Documents and such responsibility shall be solely that of the Company. Each of the Collateral Agent and the Trustee, each in its capacity as such, shall not be liable or responsible for the failure of the Company or any Collateral Grantor to maintain insurance on the Collateral, nor shall it be responsible for any loss due to the insufficiency of such insurance or by reason of the failure of any insurer to pay the full amount of any loss against which it may have insured to the Company or any Collateral Grantor, the Trustee, the Collateral Agent or any other Person. The provisions of Article 7, mutatis mutandis, shall apply to the Collateral Agent. Without limiting the generality of such preceding sentence, and notwithstanding anything to the contrary contained in this Indenture Indenture, the Intercreditor Agreement or any Collateral Documentthe Security Documents, neither in the event the Collateral Agent nor is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Trustee shall be responsible for, and neither makes any representation regardingCollateral, the validity, effectiveness Collateral Agent shall not be required to commence any such action or priority exercise any remedy or to inspect or conduct any studies of any property under mortgages or take any such other action if the Collateral Agent has determined that the Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral Documents or such property, unless the Collateral Agent has received security interests or Liens intended to be created thereby.
(h) The benefits, protections indemnity from the Holders in an amount and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis in a form all satisfactory to the Collateral Agent in its capacity as suchsole discretion, including, without limitation, protecting the rights to reimbursement and indemnification.
(i) Collateral Agent from all such liability. The Collateral Agent is authorized and empowered shall at any time be entitled to appoint one cease taking any action described above if it no longer reasonably deems any indemnity, security or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to undertaking from the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations Company or the Collateral Documents Holders to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agentsufficient.
Appears in 4 contracts
Samples: Indenture (Mbia Inc), Subordinated Indenture (Mbia Inc), Subordinated Indenture (Mbia Inc)
Collateral Agent. Each Buyer hereby (ai) The Issuer hereby appoints Wilmington TrustAlto Opportunity Master Fund, National AssociationSPC – Segregated Master Portfolio B, to act on behalf of as the Secured Parties as collateral agent hereunder and under the other Security Documents (in such capacity, the “Collateral Agent”), and (ii) authorizes the Collateral Agent under this Indenture (and each its officers, directors, employees and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not have, by reason hereof or of any of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to other Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor any of its officers, directors, employees or agents shall have any liability to any Buyer for any action taken or omitted to be taken in connection herewith or with any other Security Document except to the extent caused by the terms of this Indenture and the Collateral Documentsits own gross negligence or willful misconduct, and Wilmington Trust, National Association each Buyer agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of defend, protect, indemnify and hold harmless the Collateral Agent and neither all of its officers, directors, employees and agents (collectively, the Trustee nor “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Security Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for required to exercise any discretion or 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 instructions of the Required Holders, and such instructions shall be binding upon all holders of Notes; provided, however, that the Collateral Agent shall not be required to take any action taken or not taken by it which, in the absence reasonable opinion of its own gross negligence the Collateral Agent, exposes the Collateral Agent to liability or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order)which is contrary to this Agreement or any other Transaction Document or applicable law. The Collateral Agent shall be entitled to rely uponupon any written notices, and shall not incur any liability for relying uponstatements, any noticecertificates, request, certificate, consent, statement, instrument, document orders or other writing documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed signed, sent or sent by the proper person. The Collateral Agent may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper personPerson, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, all matters pertaining to this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee Agreement or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly other Transaction Documents and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest duties hereunder or be prejudicial to the interests thereunder, upon advice of Holders, the Trustee or the Collateral Agentcounsel selected by it.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Genius Group LTD), Securities Purchase Agreement (Shuttle Pharmaceuticals Holdings, Inc.), Securities Purchase Agreement (Genius Group LTD)
Collateral Agent. (a) The Issuer hereby appoints Wilmington TrustCollateral Agent shall not be liable for any action taken, National Associationsuffered, or omitted to be taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement or any other Loan Document. The rights, privileges, protections, immunities and benefits given to the Collateral Agent, including its right to be indemnified, are extended to, and shall be enforceable by, the Collateral Agent in each of its capacities hereunder, and each agent, custodian and other Person employed to act on behalf hereunder. The Collateral Agent may request that any Obligor Party or the Administrative Agent deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Agreement or any of the Secured Parties other Loan Documents, which certificate may be signed by any person authorized to sign such a certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded. The permissive right of the Collateral Agent to take or refrain from taking action hereunder or under any of the other Loan Documents shall not be construed as a duty. Money held by the Collateral Agent under this Indenture and each Agreement or under any of the other Loan Documents need not be segregated from other funds except to the extent required by law. The Collateral Agent shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Borrower. The Collateral Agent may refrain from taking any action in any jurisdiction if, in its opinion, the taking of such action in that jurisdiction would be contrary to any law of that jurisdiction or of the State of New York, it would otherwise render it liable to any Person in that jurisdiction or the State of New York, the taking of such action would require it to obtain any license or otherwise qualify to do business or subject it to taxation in such jurisdiction, it would not have the power or authority to take such action in such jurisdiction by virtue of any law in that jurisdiction or in the State of New York, or it is determined by any court or other competent authority in that jurisdiction or in the State of New York that it does not have such power or authority. Anything in this Agreement or in any of the Loan Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to notwithstanding, in no event shall the Collateral Agent by the terms be liable for special, indirect, consequential or punitive loss or damage of this Indenture and the Collateral Documentsany kind whatsoever (including but not limited to loss of profit), and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of even if the Collateral Agent has been advised as to the likelihood of such loss or damage and neither the Trustee nor any regardless of the Holders shall have any rights as a third party beneficiary form of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreementsaction. The Collateral Agent shall not be liable for any action taken error of judgment made in good faith by an officer or not taken by officers of the Collateral Agent, unless it shall be conclusively determined in the absence of its own gross negligence or willful misconduct (as determined a final non-appealable judgment by a court of competent jurisdiction that the Collateral Agent was grossly negligent or acting with willful misconduct in ascertaining the pertinent facts. The Collateral Agent shall have no obligation to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder.
(b) Beyond the exercise of reasonable care in the custody thereof and as otherwise specifically set forth herein, the Collateral Agent shall not have any duty as to any of the Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Collateral Agent shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Collateral Agent shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent in good faith.
(c) The Collateral Agent shall not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes gross negligence or willful misconduct, as determined by the final nonappealable decision of a finalcourt of competent jurisdiction, non-appealable order). on the part of the Collateral Agent, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of any Obligor Party to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral.
(d) Any Person into which the Collateral Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Collateral Agent shall be a party, or any Person succeeding to all or substantially all of the corporate agency or corporate trust business of the Collateral Agent shall be the successor of the Collateral Agent hereunder and under the other Loan Documents, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
(e) The Collateral Agent shall be entitled to rely upon, and shall not incur upon any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document notice or other writing document (including any facsimile or electronic mail) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person. The Person or Persons (without any duty (express or implied) of the Collateral Agent may also rely upon to verify the genuineness or correctness of any statement made to it orally fact stated therein or by telephone and believed by it to have been made by propriety of the proper personsignatory or deliverer or otherwise the validity or enforceability thereof), and shall not incur any liability for relying thereon. The Collateral Agent may consult with upon advice and statements of legal counsel (who may be counsel for the Trustee)counsel, independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of in all cases (including when any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created action by the Collateral DocumentsAgent alone is authorized hereunder, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to if the Collateral Agent for elects in its sole discretion to obtain instructions from the benefit of Administrative Agent, the Secured Parties or the Required Lenders) be fully protected in acting or in refraining from acting hereunder or under any Security Document pursuant to the Collateral Documents or any lien and/or any filingwritten instructions of the Administrative Agent, or recording or otherwise creating, perfecting, continuing or maintaining any lien the Secured Parties or the perfection thereof. By accepting the Securities, each Holder will be deemed Required Lenders and any action taken or failure to have irrevocably agreed to the foregoing provisions of the prior paragraph and act pursuant thereto shall be bound by those agreements to binding on the fullest extent permitted by law.
(d) Subject to Administrative Agent and the provisions Secured Parties. Whenever in the administration of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that this Agreement the Collateral Agent shall execute and deliver the Collateral Documents deem it desirable that a matter be proved or established prior to which it is a party and all agreementstaking, power of attorneysuffering or omitting any action hereunder, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to (unless other evidence be herein specifically prescribed) may, in the terms absence of this Indenturebad faith on its part, or (ii) payments conclusively rely upon instructions from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5Administrative Agent, the Trustee shall promptly turn Secured Parties or the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor AgreementRequired Lenders.
(f) The Collateral Agent shall have no obligation whatsoever may refuse to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under perform any duty of careor exercise any power or right unless it receives indemnity reasonably satisfactory to it against any loss, disclosure, liability or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoingexpense.
(g) Notwithstanding anything else to the contrary herein, whenever reference is made in this Indenture Agreement or any Collateral Documentother Loan Document to any discretionary action by, neither consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Collateral Agent nor or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Trustee Collateral Agent, it is understood that in all cases the Collateral Agent shall be responsible forfully justified in failing or refusing to take any such action under this Agreement or such other Loan Document if it shall not have received written directions of the Administrative Agent, and neither makes any representation regardingRequired Lenders or the Secured Parties in respect of such matter. Further, the validityCollateral Agent shall be permitted to request that all instructions and directions of the Administrative Agent, effectiveness Required Lenders or priority of the Secured Parties provided to the Collateral Agent hereunder or under the other Security Documents be in writing (and, in such a case, the Collateral Agent shall be excused from following any such instructions or directions that are not in writing). This provision is intended solely for the benefit of the Collateral Documents or the security interests or Liens Agent and is not intended to be created therebyand will not entitle the other parties hereto to any defense, claim or counterclaim, or confer any rights or benefits on any party hereto.
(h) The benefits, protections and indemnities agreements in this Section 8.08 shall survive the payment in full of the Trustee hereunder, as applicable Secured Obligations and the termination of this Indenture shall apply mutatis mutandis to Agreement and the Security Documents and the resignation or removal of the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests exercise of the Holders in the Collateral, including power to institute Write-Down and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral AgentConversion Powers by a Resolution Authority.
Appears in 3 contracts
Samples: Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture Trustee and each of the Holders by acceptance of the Securities hereby authorize the appointment of the Collateral Agent as the Trustee’s and the Holders’ Collateral Agent under the Security Documents and Intercreditor Agreements in its capacity as mortgagee and security trustee pursuant to the Collateral Rig Mortgage, and the Trustee and each of the Holders by acceptance of the Securities hereby irrevocably authorize the Collateral Agent to enter into the Security Documents and to take such action on their behalf under the provisions of the Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Security Documents, and Wilmington Trust, National Association agrees to act together with such powers as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holdersreasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or and the Security Documents, the duties of the Collateral DocumentsAgent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth in this Indenture, the Collateral Documents to which it is party herein and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Security Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documentsparty, (B) agrees that the Liens on the Collateral securing the Obligations nor shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized have or be deemed to take have any trust or refrain from taking any actions in accordance fiduciary relationship with the terms of an Intercreditor AgreementTrustee, any Holder, the Company, any Collateral Grantor or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing and subject sentence, the use of the term “agent” in this Indenture with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom, and is continuing;
intended to create or reflect only an administrative relationship between independent contracting parties. The Trustee is authorized and directed by the Holders and the Holders by acquiring the Securities are deemed to have authorized the Trustee, as applicable, to cause the Collateral Agent to enter into and perform its obligations under the Security Documents. The Collateral Agent is authorized and directed by the Trustee and the Holders and the Holders by acquiring the Securities are deemed to have authorized the Collateral Agent, to (i) enter into the Security Documents to which it is a party, (ii) shall not have any duty to take any discretionary action or bind the Trustee and the Holders on the terms as set forth in such Security Documents and (iii) perform and observe its obligations and exercise any discretionary powers, except discretionary its rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral under such Security Documents, have any duty to discloseincluding entering into amendments, supplements and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is other modifications permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee this Indenture or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Security Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Each Holder, by its acceptance of a Security, is deemed to have consented and agreed to the Securitiesterms of each Security Document, agrees that as originally in effect and as amended, restated, replaced, supplemented or modified from time to time in accordance with its terms or the terms of this Indenture. Each of the Holders by acquiring the Securities is hereby deemed to have directed the Trustee to appoint the Collateral Agent shall execute as its mortgagee and deliver security trustee to receive, hold, administer and enforce the Collateral Documents to which it is a party and all agreementsRig Mortgage covering the Collateral Rig, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereofas contemplated under this Indenture. The Collateral Agent shall hold (directly not be deemed to have knowledge or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf notice of the Holders on the Collateral for their benefitoccurrence of any Default or Event of Default, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from unless the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments shall have received written notice from the Collateral Agent Trustee or unless a written notice of any event which is in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with fact such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied a Default is received by the Collateral Agent pursuant at the address specified in Section 14.01, and such notice references the Securities and this Indenture. The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the terms Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Securities (subject to this Indenture and the Intercreditor Agreement.
(f) Section 12.05). The Collateral Agent shall have no obligation and makes no representation whatsoever to the Trustee or any of the Holders as to assure the existence, genuineness, value or protection of the Collateral or the sufficiency of any Security Documents, or that the Collateral exists or is owned by any Issuer or Guarantor of the Collateral Grantors or is cared for, protected, protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any GuarantorCollateral Grantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, disclosure or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral other Security Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture . The grant of permissive rights or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis powers to the Collateral Agent shall not be construed to impose duties to act. For the avoidance of doubt, nothing herein shall require the Collateral Agent to file financing statements or continuation statements, to record any documents or instruments in any public office at any time or be responsible for perfection or maintaining the perfection of the security interests purported to be created by the Security Documents and such responsibility shall be solely that of the Company. Each of the Collateral Agent and the Trustee, each in its capacity as such, includingshall not be liable or responsible for the failure of the Company or any Collateral Grantor to maintain insurance on the Collateral, without limitationnor shall it be responsible for any loss due to the insufficiency of such insurance or by reason of the failure of any insurer to pay the full amount of any loss against which it may have insured to the Company or any Collateral Grantor, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor AgreementsTrustee, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or any other Person. The provisions of Article 7, mutatis mutandis, shall apply to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 3 contracts
Samples: Indenture (Transocean Ltd.), Indenture (Transocean Ltd.), Indenture (Transocean Ltd.)
Collateral Agent. (aA) The Issuer hereby appoints Wilmington TrustCollateral Agent agrees that it will hold the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, National Associationand any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 12.02, to act on behalf act, when directed by the Required Holders, in preservation of the Secured Parties security interest in the Collateral. The Collateral Agent is authorized and empowered, when directed by the Required Holders, to appoint one or more co-Collateral Agents as may be necessary or appropriate; provided, however, that no Collateral Agent hereunder shall be personally liable by reason of any act or omission of any other Collateral Agent hereunder.
(B) Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, continuation, priority, sufficiency or protection of any Lien, including without limitation not being responsible for payment of any taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or to monitor the status of any Lien or performance of the Collateral, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including without limitation, the filing of any UCC financing statements, continuation statements, or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(C) The Collateral Agent will be subject to such directions as may be given to it by the Required Holders or the Trustee (as directed by the Required Holders) from time to time. Except as so directed , and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon direction purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral. The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(D) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be afforded, and shall be entitled to enforce, each and all of the rights, privileges, protections, immunities, indemnities and benefits of the Trustee in this Indenture and each of the other Notes Documents, including, without limitation, under Article 10; provided that in that context any references in this Indenture to “Trustee” shall be references to “Collateral Agent”, references to “negligence” shall be references to “gross negligence” and Section 10.01(A) does not apply to the Collateral Agent. Without limiting the immediately preceding sentence, the Collateral Agent shall be entitled to compensation, reimbursement and indemnity in the same manner as the Trustee as provided in Section 10.06.
(E) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee copies of all Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated delivered to the Collateral Agent by and copies of all documents delivered to the terms of this Indenture and Collateral Agent pursuant to the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. .
(F) Notwithstanding any provision to the contrary contained elsewhere in this Indenture or and the Collateral Documents, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth in this Indenture, the Collateral Documents to which it is party herein and in the Intercreditor Agreements. The Collateral Documents, to which the Collateral Agent is a party, nor shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). The Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, or any other party, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements read into this Indenture and the Collateral Documents, the Trustee and or otherwise exist against the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor AgreementAgent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and subject is intended to create or reflect only an administrative relationship between independent contracting parties.
(G) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Collateral Agent shall have received written notice from the Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” Subject to its rights hereunder, the Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Required Holders or the Trustee (acting at the direction of the Required Holders) in accordance with the terms hereof.
(H) No provision of this Indenture or any Collateral Document shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Holders or the Trustee unless it shall have received indemnity satisfactory to the Collateral Agent against potential costs and liabilities incurred by the Collateral Agent relating thereto. Notwithstanding anything to the contrary contained in this Indenture or the Collateral Documents, in the event the Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or take any such other action if the Collateral Agent has determined that the Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances. The Collateral Agent shall at any time be entitled to cease taking any action if it no longer reasonably deems any indemnity, security or undertaking from the Company or the Holders to be sufficient.
(I) The parties hereto and the Holders hereby agree and acknowledge that neither the Collateral Agent nor the Trustee shall assume, be responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs (including but not limited to, any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any environmental law as a result of this Indenture, the Collateral Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture and the Collateral Documents, the Collateral Agent and the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Agent or the Trustee, as applicable, in the Collateral and that any such actions taken by the Collateral Agent or the Trustee shall not be construed as or otherwise constitute any participation in the management of such Collateral. In the event that the Collateral Agent or the Trustee is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any obligation for the benefit of another, which in either the Collateral Agent’s or Trustee’s sole discretion may cause the Collateral Agent or Trustee, as applicable, to be considered an “owner or operator” under the provisions of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §9601, et seq., or otherwise cause the Collateral Agent or Trustee, as applicable, to incur liability under CERCLA or any other federal, state or local law, the Collateral Agent and the Trustee reserves the right, instead of taking such action, to either resign or arrange for the transfer of the title or control of the asset to a court-appointed receiver. Neither the Collateral Agent nor the Trustee shall be liable to any person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s or the Trustee’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment. If at any time it is necessary or advisable for property to be possessed, owned, operated or managed by any person (including the Collateral Agent or the Trustee) other than the Company, the Required Holders shall direct the Collateral Agent or the Trustee to appoint an appropriately qualified Person (excluding the Collateral Agent or the Trustee) who they shall designate to possess, own, operate or manage, as the case may be, the property.
(J) The Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture or the Collateral Documents unless it shall be directed by the Trustee (acting at the direction of the Required Holders) or the Required Holders. If the Collateral Agent so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent and the Trustee shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Collateral Documents in accordance with a request, direction, instruction, or consent of the Required Holders or, in the case of the Collateral Agent, at the request, direction, instruction, or consent of the Trustee (acting at the direction of the Required Holders). Such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(K) Except as otherwise explicitly provided herein or in the Collateral Documents, the Collateral Agent:, the Trustee nor any of their respective officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof.
(iL) shall not be subject to The Collateral Agent and the Trustee assumes no responsibility for any fiduciary failure or delay in performance or any breach by the Company or any other implied duties, regardless of whether an Event of Default has occurred grantor under this Indenture and is continuing;
(ii) the Collateral Documents. The Collateral Agent and the Trustee shall not have any duty obligation to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement Holder or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty Person to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents existence of any certificate, report Default or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness observance or genuineness performance by any obligor of any Collateral Document terms of this Indenture or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth conditions precedent contained in this Indenture or any Collateral Document, other than to confirm receipt of items expressly required to be delivered to Documents. The Collateral Agent and the Collateral Agent; and
(vi) Trustee shall not be responsible required to initiate or liable for creating, preserving, perfecting conduct any litigation or validating the security interest granted to collection or other proceeding under this Indenture or the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by lawDocuments.
(dM) Subject to the provisions of the applicable Collateral DocumentDocuments and this Indenture, each Holder, by its acceptance of the SecuritiesNotes, agrees that the Collateral Agent and the Trustee shall execute and deliver such intercreditor agreements as it may be presented from time to time and the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental theretothereto (including any releases permitted hereunder), and act in accordance with the terms thereof. The For the avoidance of doubt, the Collateral Agent shall hold (directly not be required to exercise discretion under this Indenture or through any agent) and is directed by each Holder to so hold, the Collateral Documents and shall not be entitled required to enforce on behalf make or give any determination, consent, approval, request or direction without the Required Holders or the Trustee (acting at the direction of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral AgentRequired Holders).
(eN) If The Trustee, acting at any time or times the Trustee shall receive (i) by paymentdirection of the Required Holders, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from may direct the Collateral Agent in excess of the amount connection with any action required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to or permitted by this Indenture or the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant Documents.
(O) Subject to the terms of this Indenture and the Intercreditor Agreement.
Collateral Documents, in each case that the Collateral Agent may or is required hereunder or under any other Notes Documents to take any action (f) an “Action”), including but not limited to making any determination, giving consents, exercising rights, powers, or remedies, releasing or selling Collateral, or otherwise acting hereunder or under any other Notes Documents, the Collateral Agents may seek direction from the Required Holders. The Collateral Agent shall have no obligation whatsoever not be liable with respect to any Action taken or omitted to be taken by it in accordance with such direction. Subject to the Trustee or any terms of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared forDocuments, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to if the Collateral Agent pursuant shall request direction from the Required Holders with respect to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretoAction, the Collateral Agent shall be entitled to refrain from such Action unless and until such Collateral Agent shall have no other duty or received such direction, and the Collateral Agent and Trustee shall not incur liability whatsoever to the Trustee or any Holder as to any Person by reason of the foregoingso refraining.
(gP) Notwithstanding anything to Beyond the contrary exercise of reasonable care in this Indenture or any Collateral Documentthe custody thereof, neither the Collateral Agent nor the Trustee shall have any duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords property of similar customers and shall not be liable or responsible for, and neither makes for any representation regarding, loss or diminution in the validity, effectiveness or priority value of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefitsCollateral, protections and indemnities by reason of the Trustee hereunderact or omission of any carrier, as applicable of this Indenture shall apply mutatis mutandis to forwarding agency or other agent or bailee selected by the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnificationgood faith.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 3 contracts
Samples: Indenture (Biora Therapeutics, Inc.), Indenture (Biora Therapeutics, Inc.), Indenture (Biora Therapeutics, Inc.)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees Trustee has been appointed to act as such. The provisions of this Section 13.03 are solely for Collateral Trustee hereunder by the benefit Holders of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor AgreementsNotes. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). The Collateral Agent Trustee shall be entitled to rely uponobligated, and shall not incur have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper personrights, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement and the Indenture. In furtherance of the foregoing provisions of this Section, each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Trustee for the benefit of Secured Parties in accordance with the terms of an Intercreditor Agreementthis Section. Without limiting the generality The provisions of the foregoing and subject Indenture relating to the Collateral DocumentsTrustee or the Trustee, if applicable, including, without limitation, the provisions relating to resignation or removal of the Collateral Trustee and the protections, rights, indemnities, powers and duties and immunities of the Collateral Trustee are incorporated herein by this reference and shall survive any termination of the Indenture or removal or resignation of the Collateral Trustee or Trustee, if applicable. In connection with exercising any right or discretionary duty hereunder (including, without limitation, the exercise of any rights following the occurrence of an Event of Default), the Collateral Agent:
(i) Trustee shall not be subject entitled to any fiduciary or other implied duties, regardless request and rely upon the direction of whether an Event Holders of Default has occurred and is continuing;
(ii) a majority in aggregate outstanding amount of the Notes to direct the Collateral Trustee pursuant to the Indenture. The Collateral Trustee shall not have any duty liability for taking any action at such direction or for its failure to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by pending the receipt of such direction. The Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and Trustee shall not be liable responsible for the failure to disclose, any information relating and makes no representation as to the Issuer validity or adequacy of this Agreement, and it shall not be responsible for any statement or recital in this Agreement. Neither the Collateral Trustee nor any of its Affiliates that is communicated to affiliates, directors, officers, agents or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) employees shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or ascertain, inquire into or verify (Ai) any statement, warranty or representation made in or in connection with any Collateral Document, this Agreement; (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (Cii) the performance or observance of any of the covenants, covenants or agreements of the Company herein; or other terms or conditions set forth therein or the occurrence of any Event of Default, (Diii) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by lawTrustee.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 3 contracts
Samples: First Lien Notes Pledge and Security Agreement (Ocwen Financial Corp), Indenture (Ocwen Financial Corp), Second Lien Notes Pledge and Security Agreement (Ocwen Financial Corp)
Collateral Agent. (ai) The Issuer Corporation Service Company (“CSC”) is hereby appoints Wilmington Trustappointed Collateral Agent under the Security Document and each Buyer hereby authorizes CSC, National Associationin such capacity, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by its agent in accordance with the terms of the Security Document and this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as suchAgreement. The provisions of this Section 13.03 4(d) are solely for the benefit of the Collateral Agent Buyers and neither the Trustee nor any of the Holders Company and its Affiliates shall not have any rights as a third party beneficiary of any of the provisions contained hereinthereof. Each Holder agrees that any action taken by In performing its functions and duties under the Security Document and this Agreement, the Collateral Agent shall act solely as an agent of Buyers and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with the Company or any of its Affiliates. The Collateral Agent shall be obligated, and shall have the powers and rights, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of Collateral), solely in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral DocumentsSecurity Document. If any provision, and duty, obligation or right under the exercise by the Collateral Agent of Security Document is in conflict with any rights provision, duty, obligation or remedies set forth herein and therein right under this Agreement then this Agreement shall be authorized and binding upon all Holderscontrol. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the The Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth herein and in the Security Document and such powers as are incidental thereto.
(ii) Each Buyer irrevocably authorizes the Collateral Agent to take such action on such Buyer’s behalf and to exercise such powers, rights and remedies hereunder as are specifically delegated or granted to the Collateral Agent by the terms of this IndentureAgreement and the Security Document, together with such powers, rights and remedies as are reasonably incidental thereto. The Collateral Agent shall have only those duties and responsibilities that are expressly specified herein and therein. The Collateral Agent may exercise such powers, rights and remedies and perform such duties by or through its agents or employees. Notwithstanding any other provisions hereof or of any provision of the Security Document, the Collateral Documents Agent shall not have or be deemed to have any fiduciary relationship with the Buyers or any other person or entity, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or the Security Document or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement or the Security Document 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.
(iii) The Collateral Agent may act in reliance upon any writing or instrument or signature which it is party it, in good faith, believes to be genuine, and may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument and may assume that any person or entity purporting to give any writing, notice, advice or instruction in connection with the Intercreditor Agreementsprovisions hereof has been duly authorized to do so. The Collateral Agent may consult with counsel and shall be entitled to act, and shall be fully protected in any action taken in good faith, in accordance with advice given by counsel. The Collateral Agent shall not be liable to the Company or any of its Affiliates, or the Buyers for any recitals or warranties herein or in the Security Document, nor for the effectiveness, enforceability, validity or due execution of the Security Document or any other agreement, document or instrument, nor to make any inquiry respecting the performance by any party of their respective obligations thereunder. Any such inquiry which may be made by the Collateral Agent shall not obligate it to make any further inquiry or to take any action.
(iv) The Collateral Agent shall not be required to take any action taken or not taken by which, in the Collateral Agent’s sole and absolute judgment, could involve it in expense or liability unless furnished with security and indemnity which it deems, in its sole and absolute discretion, to be satisfactory. In the absence event the Collateral Agent receives conflicting instructions hereunder or under any of the Security Document, the Collateral Agent shall be fully protected in refraining from acting until such conflict is resolved to the satisfaction of the Collateral Agent. Neither the Collateral Agent nor any of its own gross directors, officers, employees or agents shall be liable, except for the Collateral Agent’s bad faith, negligence or willful misconduct (as finally determined by a court of competent jurisdiction for any action taken or omitted under or in connection with this Agreement, the Security Document or any other instrument or document in connection herewith or therewith.
(v) The Collateral Agent may resign or be removed by the Buyers (by a finalvote of the holders of a majority of the outstanding principal of the Notes) as Collateral Agent hereunder at any time upon at least thirty (30) days’ prior notice. If the Collateral Agent at any time shall resign, non-appealable orderthe Buyers shall (by a vote of the holders of a majority of the outstanding principal of the Notes), within ten (10) days after such notice appoint a successor Collateral Agent which shall thereupon become the Collateral Agent hereunder and under the Security Document. If no successor Collateral Agent shall have been so appointed, and shall have accepted such appointment, within the above time frame the retiring Collateral Agent may appoint a successor. Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, such successor Collateral Agent shall be entitled to receive from the retiring Collateral Agent such documents of transfer and assignment as such successor Collateral Agent may reasonably request, and shall thereupon succeed to and become vested with all rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations under this Agreement. After the effective date of any retiring Collateral Agent’s resignation hereunder as collateral agent, the provisions of this section shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Collateral Agent under this Agreement.
(vi) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any default unless the Collateral Agent has received a copy of a notice thereof from a Buyer referring to this Agreement and describing such default. In the event that the Collateral Agent receives such a notice, the Collateral Agent shall promptly give notice thereof to the other Buyers and to the Company. The Collateral Agent shall be entitled permitted to rely upon, take such action with respect to any default as provided in this Agreement 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or expertsSecurity Document.
(bvii) Subject to the provisions Each Buyer, by its acceptance of the Intercreditor Agreements benefits hereof and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby Security Document, agrees that (A) it will be bound by and will take shall have no actions contrary right individually to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of realize upon any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to it being understood and agreed by each Buyer that all rights and remedies may be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to exercised solely by the Collateral Agent for the benefit of the Secured Parties pursuant Buyer in accordance with the provisions of this Agreement and the Security Document in the Collateral Agent’s sole and absolute discretion.
(viii) Upon any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to its creditors upon any dissolution or winding-up or total or partial liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings including, without limitation, all amounts received by the Collateral Agent on behalf of the Buyers, or received by the Buyers, shall be paid by the in accordance with its outstanding secured Obligations (as defined in the Security Document) to each of the Buyers in accordance with clause (xii) below. Any and all amounts referred to in this clause (viii)or any other amounts or proceeds of collateral received by any of the Buyers shall be held in trust for the benefit of all of the Buyers, shall be immediately delivered by the applicable Buyers to the Collateral Documents or any lien and/or any filingAgent in the amount and form received, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to apportioned, paid over or delivered among the fullest extent permitted by lawBuyers in accordance with clause (xi) of this Agreement.
(dix) Subject to Except as provided by law, the provisions security interests in the Collateral shall be for the ratable benefit of the applicable Collateral DocumentBuyers, each Holdershall rank equally in priority, none being senior or subordinate to any other. No Buyer shall contest the validity, perfection, priority or enforceability of the lien of any other Buyer in the Collateral. Each Buyer, by its acceptance of the Securitiesbenefits hereof, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever right individually to the Trustee or realize upon any of the Holders Collateral under this Agreement, the Security Document, pursuant to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protectedapplicable law, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documentsotherwise, it being understood and agreed by each Buyer that in respect of all rights and remedies under this Agreement, the CollateralSecurity Document, pursuant to applicable law, or any actotherwise, omission, or event related thereto, may be exercised solely by the Collateral Agent for the benefit of Buyers in accordance with the provisions of this Agreement and the Security Document.
(x) Upon any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding-up or total or partial liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings (each such payment, distribution and/or amount is hereafter referred to as a “Collateral Proceeds Amount”), shall have no be disbursed in accordance with clause (xi) below.
(xi) Any and all Collateral Proceeds Amount and any other duty amounts or liability whatsoever to the Trustee or any Holder as to proceeds of Collateral received by any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee Buyers shall be responsible for, and neither makes any representation regarding, held in trust for the validity, effectiveness or priority benefit of any all of the Collateral Documents or Buyers, shall be immediately delivered by the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis Buyer to the Collateral Agent in its capacity as suchthe amount and form received, includingand, without limitation, subject to the rights to reimbursement and indemnification.
any of the Collateral Proceeds Amount or such other amounts or proceeds of Collateral of the holders of the other security interests in the Collateral referred to in clause (ix) The Collateral Agent is authorized and empowered above, shall be apportioned, paid over or delivered as follows: first, to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute for the payment or reimbursement of any expenses and maintainfees of, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which any other amount payable to, the Collateral Agent hereunder or Trustee is under the Security Document, and next, among the Buyers on a party or pro rata basis to prevent any impairment of Collateral by any acts that may be unlawful or each in violation accordance with the Company’s outstanding obligations to each of the Collateral Documents or the Intercreditor Agreements Buyers which are secured pursuant to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral AgentAgreement.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Applied Dna Sciences Inc), Securities Purchase Agreement (Applied Dna Sciences Inc), Securities Purchase Agreement (Applied Dna Sciences Inc)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Trustee and the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i1) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii2) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second First Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 3 contracts
Samples: Indenture (Qwest Corp), Indenture (Qwest Corp), Indenture (Qwest Corp)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees has been appointed to act as such. The provisions of this Section 13.03 are solely for the benefit Collateral Agent hereunder by Lenders and, by their acceptance of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenturebenefits hereof, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order)other Secured Parties. The Collateral Agent shall be entitled to rely uponobligated, and shall not incur have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper personrights, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement, the Intercreditor Agreement and the Second Lien Credit Agreement; provided, the Collateral Agent shall, after payment in full of all Obligations under the Second Lien Credit Agreement, exercise, or refrain from exercising, any remedies provided for herein in accordance with the terms instructions of an Intercreditor the holders (the “Majority Holders”) of a majority of the aggregate “settlement amount” as defined in the Hedge Agreements (or, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. Without limiting the generality For purposes of the foregoing sentence, settlement amount for any Hedge Agreement that has not been terminated shall be the settlement amount as of the last Business Day of the month preceding any date of determination and subject shall be calculated by the appropriate swap counterparties and reported to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to Agent upon request; provided any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Hedge Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates with a settlement amount that is communicated to or obtained by a negative number shall be disregarded for purposes of determining the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request Majority Holders. In furtherance of the Trusteeforegoing provisions of this Section, (B) in the absence of each Secured Party, by its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer acceptance of the Issuer stating benefits hereof, agrees that such action is permitted by the terms of the Intercreditor Agreement or it shall have no right individually to realize upon any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created exercised solely by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereofof this Section. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Second Lien Credit Agreement and the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or Agreement relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights provisions relating to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one resignation or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct removal of the Collateral Agent to institute and maintain, such suits the powers and proceedings as it may deem expedient to protect or enforce duties and immunities of the Liens securing Collateral Agent are incorporated herein by this reference and shall survive any termination of the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents Credit Agreement or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral AgentAgreement.
Appears in 2 contracts
Samples: Second Lien Pledge and Security Agreement, Second Lien Pledge and Security Agreement (RadNet, Inc.)
Collateral Agent. Notwithstanding anything to the contrary herein, the following provisions shall govern the Collateral Agent’s rights, powers, obligations and duties under this Agreement:
(a) The Issuer hereby appoints Wilmington Trust, Each of the Holders and the Trustee pursuant to Section 13.03 of the Indenture has designated and appointed U.S. Bank National Association, Association to act on behalf of the Secured Parties as the Collateral Agent under this Indenture Agreement and each of the other Note Documents to which it is a party, and has authorized the Collateral Agent to take such actions on its behalf under the provisions of this Agreement and such other Note Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral such other Note Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture Agreement or the Collateral Documents, any other Note Documents the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth in this IndentureAgreement or such other Note Documents or any fiduciary relationship with any parties to the First-Lien Documents or Note Documents, and no implied covenants, functions or responsibilities shall be read into this Agreement or otherwise exist against Collateral Agent.
(b) In no event shall the Collateral Agent have any obligation to inquire or investigate as to the correctness, veracity, or content of any instruction received from any other Note Documents. In no event shall the Collateral Agent have any liability in respect of any such instruction received by it and relied on with respect to any action or omission taken pursuant thereto.
(c) With respect to the Collateral Agent’s duties under this Agreement or any of the Note Documents, the Collateral Agent may act through its attorneys, accountants, experts and such other professionals as the Collateral Agent deems necessary, advisable or appropriate and shall not be responsible for the misconduct or negligence of any attorney, accountant, expert or other such professional appointed with due care.
(d) Neither the Collateral Agent nor any of its experts, officers, directors, employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any action lawfully taken or omitted to be taken by it under or in connection with this Agreement or any of the Note Documents (except for its gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction), or (ii) responsible in any manner for any recitals, statements, representations or warranties (other than its own recitals, statements, representations or warranties) made in this Agreement or any of the other Note Documents or in any certificate, report, statement or other document referred to which it is party or provided for in, or received by the Collateral Agent under or in connection with, this Agreement or any of the Note Documents or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any of the Note Documents or for any failure of the Grantors or any other Person to perform their obligations hereunder and in the Intercreditor Agreementsthereunder. The Collateral Agent shall not be liable under any obligation to any Person to ascertain or to inquire as to (i) the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any of the Note Documents or to inspect the properties, books or records of the Grantors, (ii) whether or not any representation or warranty made by any Person in connection with this Agreement or any Note Documents is true, (iii) the performance by any Person of its obligations under this Agreement or any of the Note Documents or (iv) the breach of or default by any Person of its obligations under this Agreement or any of the Note Documents.
(e) The Collateral Agent shall not be bound to (i) account to any Person for any sum or the profit element of any sum received for its own account; (ii) disclose to any other Person any information relating to the Person if such disclosure would, or might, constitute a breach of any law or regulation or be otherwise actionable at the suit of any Person; (iii) be under any fiduciary duties or obligations other than those for which express provision is made in this Agreement or in any of the other Note Documents to which it is a party; or (iv) be required to take any action taken that it reasonably believes, based on advice of counsel, is in conflict with any applicable law, this Agreement or any of the other Note Documents, or any order of any court or administrative agency;
(f) The Collateral Agent shall be authorized to but shall not taken by it be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or monitoring or maintaining the perfection of any security interest in the absence Collateral. It is expressly agreed, to the maximum extent permitted by applicable law, that the Collateral Agent shall have no responsibility for (i) taking any necessary steps to preserve rights against any Person with respect to any Collateral or (ii) taking any action to protect against any diminution in value of its own the Collateral, but, in each case (A) subject to the requirement that the Collateral Agent may not act or omit to take any action if such act or omission would constitute gross negligence or willful misconduct and (B) the Collateral Agent may do so and all expenses reasonably incurred in connection therewith shall be part of the Obligations.
(g) The Collateral Agent shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent in good faith, except to the extent of the Collateral Agent’s gross negligence or willful misconduct.
(h) The Collateral Agent shall not be responsible for, nor incur any liability with respect to, (i) the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the security interest in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part under this Agreement or any of the other Note Documents, except to the extent such action or omission constitutes gross negligence or willful misconduct on the part of the Collateral Agent (as determined by a final non-appealable judgment of a court of competent jurisdiction jurisdiction), (ii) the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iii) the validity of the title of the Grantors to the Collateral, (iv) insuring the Collateral or (v) the payment of taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral.
(i) Notwithstanding anything in this Agreement or any of the Note Documents to the contrary, (i) in no event shall the Collateral Agent or any officer, director, employee, representative or agent of the Collateral Agent be liable under or in connection with this Agreement or any of the Note Documents for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including but not limited to lost profits or loss of opportunity, whether or not foreseeable, even if the Collateral Agent has been advised of the possibility thereof and regardless of the form of action in which such damages are sought; and (ii) the Collateral Agent shall be afforded all of the rights, powers, immunities and indemnities set forth in this Agreement in all of the other Note Documents to which it is a finalsignatory as if such rights, non-appealable order)powers, immunities and indemnities were specifically set out in each such Note Documents. In no event shall the Collateral Agent be obligated to invest any amounts received by it hereunder.
(j) The Collateral Agent shall be entitled conclusively to rely uponrely, and shall not incur be fully protected in relying, upon any liability for relying uponnote, any noticewriting, resolution, request, direction, certificate, notice, consent, affidavit, letter, cablegram, telegram, telecopy, email, telex or teletype message, statement, instrument, order or other document or other writing conversation believed by it in good faith to be genuine and correct and to have been signed signed, sent or sent by the proper person. The Collateral Agent may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with Person or Persons and/or upon advice and/or statements of legal counsel (who may be counsel for the Trustee)counsel, independent accountants and other experts selected by it, the Collateral Agent and need not investigate any fact or matter stated in any such document. Any such statement of legal counsel shall not be liable for full and complete authorization and protection in respect of any action taken or not taken suffered by it hereunder in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Documenttherewith. The Collateral Agent shall be deemed not fully justified in failing or refusing to have actual knowledge take any action under this Agreement or any of any Event of Default unless and until written notice describing the other Note Documents (i) if such Event of Default is given by action would, in the Trustee or the Issuer and received by a Responsible Officer reasonable opinion of the Collateral Agent;
Agent (vwhich may be based on the opinion of legal counsel), be contrary to applicable law or any of the Note Documents, (ii) shall if such action is not be responsible provided for in this Agreement or have any duty to ascertain or inquire into of the other Note Documents, (Aiii) any statementif, warranty or representation made in or in connection with any Collateral Document, (B) the contents taking of any certificate, report such action hereunder or other document delivered thereunder or in connection therewith, (C) the performance or observance of under any of the covenantsNote Documents that would constitute an exercise of remedies hereunder or under any of the Note Documents it shall not first be indemnified to its satisfaction by the Holders against any and all risk of nonpayment, agreements liability and expense that may be incurred by it, its agents or other terms its counsel by reason of taking or conditions set forth therein continuing to take any such action, or (iv) if notwithstanding anything to the occurrence contrary contained in this Agreement, in connection with the taking of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of such action that would constitute a payment due under any Collateral Document or any other agreement, instrument agreement or document, it shall not first have received from the Holders or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered Grantors funds equal to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereofamount payable. The Collateral Agent shall hold (directly in all cases be fully protected in acting, or through in refraining from acting, under this Agreement or any agent) and is directed by each Holder to so holdof the other Note Documents in accordance with a request of the requisite percentage of Holders, and such request and any action taken or failure to act pursuant thereto shall be entitled to enforce on behalf of binding upon all the other Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to and the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(ek) If at The Collateral Agent shall not be deemed to have actual, constructive, direct or indirect knowledge or notice of the occurrence of any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from Default unless and until the Collateral Agent pursuant to the terms of this Indenture, has received a written notice or (ii) payments a certificate from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) Grantors stating that a Default has occurred. The Collateral Agent shall have no obligation whatsoever either prior to or after receiving such notice or certificate to inquire whether a Default has in fact occurred and shall be entitled to rely conclusively, and shall be fully protected in so relying, on any notice or certificate so furnished to it. No provision of this Agreement, the Trustee Intercreditor Agreement or any of the Holders to assure that Note Documents shall require the Collateral exists Agent to expend or is owned by risk its own funds or otherwise incur any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that financial liability in the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to performance of any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or its duties under any duty of care, disclosure, or fidelity, or to continue exercisingthis Agreement, any of the rightsother Note Documents or the exercise of any of its rights or powers, authorities, and powers granted if it shall have reasonable grounds for believing that repayment of such funds or available adequate indemnity against such risk or liability including an advance of moneys necessary to perform work or to take the Collateral Agent pursuant action requested is not reasonably assured to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretoit, the Collateral Agent may decline to act unless it receives indemnity satisfactory; to it in its sole discretion, including an advance of moneys necessary to take the action requested. The Collateral Agent shall have be under no other obligation or duty to take any action under this Agreement or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral other Note Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
otherwise if taking such action (i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct would subject the Collateral Agent to institute and maintaina tax in any jurisdiction where it is not then subject to a tax or (ii) would require the Collateral Agent to qualify to do business in any jurisdiction where it is not then so qualified.
(l) Any corporation into which the Collateral Agent may be merged, such suits and proceedings as or with which it may deem expedient to protect he consolidated, or enforce the Liens securing the Second Lien Obligations any corporation resulting from any merger or the Collateral Documents consolidation to which the Collateral Agent shall be a party, shall become a Collateral Agent under this Agreement without the execution or filing of any paper or any further act on the part of the parties hereto except for written notice to the other parties hereto.
(m) The Collateral Agent may resign as Collateral Agent at any time upon written notice to the Holders, Trustee is a party or to prevent any impairment of Collateral by any acts that and the Grantors and may be unlawful removed at any time with or without cause by the Holders constituting at least the majority of the principal amount of the Notes outstanding (the “Requisite Holders”), with any such resignation or removal to become effective only upon the appointment of a successor Collateral Agent under this Section. If the Collateral Agent shall provide notice of its resignation or be removed as Collateral Agent, then the Requisite Holders shall (and if no such successor shall have been appointed within 45 days of the Second Priority Collateral Agent’s resignation or removal, the Collateral Agent may) appoint a successor Collateral Agent which successor agent shall, in violation the case of any appointment by the Collateral Agent, be reasonably acceptable to the Requisite Holders, and the former Collateral Agent’s rights, powers and duties as Collateral Agent shall be terminated, without any other or further act or deed on the part of such former Collateral Agent (except that the resigning Collateral Agent shall deliver all Collateral then in its possession to the successor Collateral Agent and shall execute and deliver to the successor Collateral Agent such instruments of assignment and transfer and other similar documents as such successor Collateral Agent shall deem necessary or advisable (at the joint and several expense of the Grantors)). After any retiring Collateral Agent’s resignation or removal hereunder as Collateral Agent, the provisions of this Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Collateral Agent. In the event that a successor Collateral Agent is not appointed within the time period specified in this Section following the provision of a notice of resignation or removal of the Collateral Documents or the Intercreditor Agreements to which Agent, the Collateral Agent or Trustee is any other Secured Party may petition a party or this Indenture, and such suits and proceedings as court of competent jurisdiction for the Trustee or the appointment of a successor Collateral Agent may deem expedient to preserve or protect its interests (at the joint and the interests several expense of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral AgentGrantors).
Appears in 2 contracts
Samples: Second Lien Collateral Agreement (Appvion, Inc.), Second Lien Collateral Agreement (Appvion, Inc.)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Indenture, the Security Documents and the Intercreditor Agreements Agreement and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Security Documents and the Intercreditor Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture Indenture, the Security Documents and the Collateral DocumentsIntercreditor Agreement, and Wilmington Trustconsents and agrees to the terms of this Indenture, National Association the Intercreditor Agreement and each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as suchsuch on the express conditions contained in this Section 11.09. The provisions of this Section 13.03 11.09 are solely for the benefit of the Collateral Agent and neither none of the Trustee Trustee, any of the Holders nor any of the Holders Grantors shall have any rights as a third party beneficiary of any of the provisions contained hereinherein other than as expressly provided in Section 11.03 hereof. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions provision of this Indenture, the Intercreditor Agreement and the Collateral Security Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or Indenture, the Security Documents and the Intercreditor Agreement, the duties of the Collateral DocumentsAgent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth herein and in the other documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Security Documents to which it is party and in the Intercreditor AgreementsAgreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Collateral Agent may perform any of its duties under this Indenture, the Security Documents or the Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or through its Related Persons 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 taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and with due care.
(c) None of the Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or not omitted to be taken by it any of them under or in connection with this Indenture or the absence of transactions contemplated hereby (except for its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, final and non-appealable orderdecision) or under or in connection with any Security Document or the Intercreditor Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable decision), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company or any Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, the Security Documents or the Intercreditor 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 Indenture, the Security Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents or the Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Security Documents or the Intercreditor Agreement to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents or the Intercreditor Agreement or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Collateral Agent shall be entitled to rely uponrely, and shall not incur be fully protected in relying, upon any liability for relying uponwriting, any resolution, notice, requestconsent, certificate, consentaffidavit, letter, telegram, facsimile, certification, telephone message, statement, instrumentor other communication, document or other writing conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed signed, sent, or sent by the proper person. The Collateral Agent may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper personPerson or Persons, and shall not incur any liability for relying thereon. The Collateral Agent may consult with upon advice and statements of legal counsel (who may be including, without limitation, counsel for to the TrusteeCompany or any Grantor), independent accountants and other experts and advisors selected by it, and the Collateral Agent. The Collateral Agent 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.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and bound to make further distributions of such funds to Holders according to any investigation into the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of facts or matters stated in any such intercreditor agreement resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other agreements paper or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Documentdocument. The Collateral Agent shall be deemed not fully justified in failing or refusing to have actual knowledge take any action under this Indenture, the Security Documents or the Intercreditor Agreement unless it shall first receive such advice or concurrence of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by Holders of a Responsible Officer majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent;Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(ve) The Collateral Agent shall not be responsible for deemed to have knowledge or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents notice of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Default or Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to unless the Collateral Agent for shall have received written notice from the benefit Trustee or the Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with this Indenture (including Article 6) or the Holders of a majority in aggregate principal amount of the Secured Parties pursuant Notes (subject to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by lawthis Section 11.09).
(df) Subject Wilmington Trust, National Association and its respective Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with any Grantor and its Affiliates as though it was not the Collateral Agent hereunder and without notice to the provisions or consent of the applicable Collateral DocumentTrustee. The Trustee and the Holders acknowledge that, each Holderpursuant to such activities, by Wilmington Trust, National Association or its acceptance respective Affiliates may receive information regarding any Grantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Securities, agrees any such Grantor or such Affiliate) and acknowledge that the Collateral Agent shall execute and deliver the Collateral Documents not be under any obligation to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any provide such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever information to the Trustee or the Holders. Nothing herein shall impose or imply any obligation on the part of the Holders Wilmington Trust, National Association to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoingadvance funds.
(g) Notwithstanding anything The Collateral Agent may resign at any time by notice to the contrary in this Indenture or any Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Document, neither Agent. If the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regardingresigns under this Indenture, the validity, effectiveness or priority Company shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of any the resignation of the Collateral Documents or Agent (as stated in the security interests or Liens intended to be created thereby.
(h) The benefitsnotice of resignation), protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and appoint, after consulting with the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.Trustee,
Appears in 2 contracts
Samples: Indenture (Delta Tucker Holdings, Inc.), Indenture (Worldwide Recruiting & Staffing Services LLC)
Collateral Agent. (a) The Issuer Trustee hereby appoints Wilmington Trust, National Association, the Collateral Agent to act on its behalf of under this Indenture and each Collateral Document, and the Secured Parties Collateral Agent agrees to act as such; provided that, it is understood and agreed that all communications between the Collateral Agent and the Holders and all instructions or directions by Holders to the Collateral Agent shall be made or given through the Trustee.
(b) The Trustee hereby appoints Xxxxx Fargo Bank, National Association to act on its behalf as the Collateral Agent under this Indenture Indenture, the Security Agreement and under each of the other Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington TrustXxxxx Fargo Bank, National Association agrees to act as such. The provisions of this Section 13.03 11.03 are solely for the benefit of the Collateral Agent and neither none of the Trustee nor Trustee, any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement Indenture and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or and the Collateral Documents, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth herein and in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent is a party, nor shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). The Collateral Agent have or be deemed to have any trust or fiduciary relationship with the Trustee, any Holder or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements read into this Indenture and the Collateral Documents, the Trustee and Documents or otherwise exist against the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor AgreementAgent. Without limiting the generality of the foregoing and subject sentence, the use of the term “agent” in this Indenture with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom, and is continuing;
(ii) shall not have any duty intended to take any discretionary action create or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of reflect only an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by lawadministrative relationship between independent contracting parties.
(dc) Subject to the provisions of the applicable Collateral DocumentDocuments, each Holder, by its acceptance of the SecuritiesNotes, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. .
(d) The Collateral Agent shall hold (directly not be deemed to have knowledge or through notice of the occurrence of any agent) and Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee or unless a written notice of any event which is directed in fact such a Default is received by each Holder to so holdthe Collateral Agent at the address specified in Section 13.01, and shall be entitled such notice references the Notes and this Indenture. Subject to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders may only act by written instruction to of a majority in aggregate principal amount of the Trustee, Notes (subject to the terms hereof, which shall instruct the Collateral Agentthis Section 11.03).
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this IndentureCollateral, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 56, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by the Company or any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the IssuerCompany’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any other Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything The Collateral Agent may resign at any time by notice to the contrary in this Indenture or any Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Document, neither Agent. If the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regardingresigns under this Indenture, the validity, effectiveness or priority Company shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of any the resignation of the Collateral Documents or Agent (as stated in the security interests or Liens intended notice of resignation), the Collateral Agent may appoint, after consulting with the Trustee, subject to be created thereby.
(h) The benefits, protections and indemnities the consent of the Trustee Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) 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 applicable the Collateral Agent shall be terminated. Promptly following the acceptance of this Indenture the appointment of any successor Collateral Agent, the Company shall apply mutatis mutandis cause assignments of filings existing on the date of such assignment related to the Collateral Agent to be filed or recorded sufficient to reflect the successor Collateral Agent, as mortgagee or secured party of record in its capacity as such, including, without limitationaccordance with applicable law related to each portion of the Collateral. After the retiring Collateral Agent’s resignation hereunder, the rights provisions of this Section 11.03 (and Article 6) shall continue to reimbursement inure to its benefit and indemnification.
(i) 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 Indenture. The Collateral Agent is authorized and empowered shall not be liable or responsible for the failure of the Company or any Guarantors to appoint one or more co-Collateral Agents as maintain insurance on the Collateral, nor shall it deems necessary or appropriate.
(j) Subject be responsible for any loss due to the Intercreditor Agreementsinsufficiency of such insurance or by reason of the failure of any insurer to pay the full amount of any loss against which it may have insured to the Company, the Trustee is authorized and empowered to institute and maintainGuarantors, or direct the Collateral Agent to institute and maintainTrustee, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral AgentPerson.
Appears in 2 contracts
Samples: Indenture (CF Industries Holdings, Inc.), Indenture (CF Industries Holdings, Inc.)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Indenture, the Collateral Documents and the Intercreditor Agreements and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture Indenture, the Collateral Documents and the Collateral DocumentsIntercreditor Agreements, and Wilmington Trustconsents and agrees to the terms of the Intercreditor Agreements and each Collateral Document, National Association as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as suchsuch on the express conditions contained in this Section 12.9. The provisions of this Section 13.03 12.9 are solely for the benefit of the Collateral Agent and neither none of the Trustee Trustee, any of the Holders nor any of the Holders Grantors shall have any rights as a third party beneficiary of any of the provisions contained hereinherein other than as expressly provided in Section 12.4. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions provision of this Indenture, the Intercreditor Agreement Agreements and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or Indenture, the Collateral DocumentsDocuments and the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and or otherwise exist against the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor AgreementAgent. Without limiting the generality of the foregoing and subject sentence, the use of the term “agent” in this Indenture with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom, and is continuing;intended to create or reflect only an administrative relationship between independent contracting parties.
(iib) shall not have The Collateral Agent may perform any duty to take any discretionary action or exercise any discretionary powersof its duties under this Indenture, except discretionary rights and powers expressly contemplated by the Collateral Documents or the Intercreditor Agreement that Agreements by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the Collateral Agent is required respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates, (a “Related Person”) and shall be entitled to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty advice of counsel concerning all matters pertaining to disclosesuch duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be liable responsible for the failure to disclosenegligence or willful misconduct of any receiver, any information relating to the Issuer agent, employee, attorney-in-fact or any Related Person that it selects as long as such selection was made in good faith.
(c) None of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
respective Related Persons shall (ivi) shall not be liable for any action taken or not omitted to be taken by it any of them under or in connection with this Indenture or the transactions contemplated hereby (A) with the consent or at the request of the Trustee, (B) in the absence of except for its own gross negligence or willful misconduct misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (Cii) be responsible in reliance on a certificate of an authorized officer any manner to any of the Issuer stating that such action is permitted Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the terms of Issuer, the Intercreditor Agreement Co-Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral DocumentAgent under or in connection with, this Indenture, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents or the Intercreditor Agreements, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) 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 Issuers or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be deemed not fully justified in failing or refusing to have actual knowledge take any action under this Indenture, the Collateral Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by Holders of a Responsible Officer majority in aggregate principal amount of the Collateral Agent;
(v) Notes as it determines and, if it so requests, it shall not first be responsible for or have any duty indemnified to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created its satisfaction by the Collateral Documents, (E) the value or the sufficiency of Holders against any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power liability and expense which may be incurred by it by reason of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereoftaking or continuing to take any such action. The Collateral Agent shall hold (directly in all cases be fully protected in acting, or through in refraining from acting, under this Indenture, the Collateral Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any agent) and is directed by each Holder action taken or failure to so hold, and act pursuant thereto shall be entitled to enforce on behalf binding upon all of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral AgentHolders.
(e) If at The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any time Default or times Event of Default, unless a Trust Officer of the Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments take such action with respect to the Obligations arising under, such Default or relating to, this Indenture, except for any such proceeds or payments received Event of Default as may be requested by the Trustee from in accordance with Article VI or the Collateral Agent pursuant to the terms Holders of this Indenture, or (ii) payments from the Collateral Agent a majority in excess aggregate principal amount of the amount required Notes (subject to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor AgreementSection 12.9).
(f) The Collateral Agent shall have no obligation whatsoever may resign at any time by notice to the Trustee or any and the Issuers, such resignation to be effective upon the acceptance of the Holders a successor agent to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the its appointment as Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to . If the Collateral Agent pursuant resigns under this Indenture, the Issuers shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to this Indenture or any Collateral Documents, it being understood and agreed that in respect the intended effective date of the Collateral, or any act, omission, or event related theretoresignation of the Collateral Agent (as stated in the notice of resignation), the Collateral Agent shall have no other duty or liability whatsoever may appoint, after consulting with the Trustee, subject to the Trustee or any Holder consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Issuers 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 Section 12.9 (and Section 7.7) 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 of the foregoing.
(g) Notwithstanding anything actions taken or omitted to the contrary in this Indenture or any Collateral Document, neither be taken by it while it was the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or under this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 2 contracts
Samples: Indenture (Restaurant Brands International Limited Partnership), Indenture (Restaurant Brands International Limited Partnership)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture Trustee and each of the Holders by acceptance of the Securities hereby authorize the appointment of the Collateral Agent as the Trustee’s and the Holders’ collateral agent under the Security Documents and Intercreditor Agreements in its capacity as mortgagee and security trustee pursuant to the Collateral Rig Mortgage, and the Trustee and each of the Holders by acceptance of the Securities hereby irrevocably authorize the Collateral Agent to enter into the Security Documents and to take such action on their behalf under the provisions of the Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Security Documents, and Wilmington Trust, National Association agrees to act together with such powers as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holdersreasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or and the Security Documents, the duties of the Collateral DocumentsAgent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth in this Indenture, the Collateral Documents to which it is party herein and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Security Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documentsparty, (B) agrees that the Liens on the Collateral securing the Obligations nor shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized have or be deemed to take have any trust or refrain from taking any actions in accordance fiduciary relationship with the terms of an Intercreditor AgreementTrustee, any Holder or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing and subject sentence, the use of the term “agent” in this Indenture with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom, and is continuing;
(ii) shall not have any duty intended to take any discretionary action create or exercise any discretionary powers, except discretionary rights reflect only an administrative relationship between independent contracting parties. The Trustee is authorized and powers expressly contemplated directed by the Collateral Documents or Intercreditor Agreement that Holders and the Holders by acquiring the Securities are deemed to have authorized the Trustee, as applicable, to cause the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in enter into and perform its obligations under the Collateral Security Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless is authorized and until written notice describing such Event of Default is given directed by the Trustee or and the Issuer Holders and received the Holders by a Responsible Officer of acquiring the Securities are deemed to have authorized the Collateral Agent;
, to (vi) shall not be responsible for or have any duty to ascertain or inquire enter into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Security Documents to which it is a party party, (ii) bind the Trustee and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefitterms as set forth in such Security Documents and (iii) perform and observe its obligations and exercise its rights and powers under such Security Documents, subject to the provisions of the Intercreditor Agreement. Holders may notincluding entering into amendments, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act supplements and other modifications permitted by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.Security
Appears in 2 contracts
Samples: Indenture (Transocean Ltd.), Indenture (Transocean Ltd.)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees has been appointed to act as such. The provisions of this Section 13.03 are solely for the benefit Collateral Agent hereunder by Lenders and, by their acceptance of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenturebenefits hereof, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order)other Secured Parties. The Collateral Agent shall be entitled to rely uponobligated, and shall not incur have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper personrights, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions action (including, without limitation, the release or substitution of Pledged Collateral), solely in accordance with this Agreement and the Credit Agreement; provided, the Collateral Agent shall, after all Secured Obligations have been Paid in Full under the Credit Agreement and the other Credit Documents, exercise, or refrain from exercising, any remedies provided for herein in accordance with the terms instructions of an Intercreditor the holders (the “Majority Holders”) of a majority of the aggregate “settlement amount” as defined in the Hedge Agreements (or, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. Without limiting the generality For purposes of the foregoing sentence, settlement amount for any Hedge Agreement that has not been terminated shall be the settlement amount as of the last Business Day of the month preceding any date of determination and subject shall be calculated by the appropriate swap counterparties and reported to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to Agent upon request; provided any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Hedge Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates with a settlement amount that is communicated to or obtained by a negative number shall be disregarded for purposes of determining the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request Majority Holders. In furtherance of the Trusteeforegoing provisions of this Section 10, (B) in the absence of each Secured Party, by its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer acceptance of the Issuer stating benefits hereof, agrees that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent it shall be deemed not have no right individually to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of realize upon any of the covenantsPledged Collateral hereunder, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to it being understood and agreed by such Secured Party that all rights and remedies hereunder may be created exercised solely by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereofof this Section 10. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or Credit Agreement relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds including, without limitation, the provisions relating to be applied by resignation or removal of the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor powers and duties and immunities of the Collateral Agent are incorporated herein by this reference and shall survive any termination of the Credit Agreement.
(fb) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered right to appoint one or more cosub-Collateral Agents as it deems necessary or appropriate.
agents for the purpose of retaining physical possession of the Pledged Collateral, which may be held (j) Subject to in the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct discretion of the Collateral Agent to institute and maintainAgent) in the name of the relevant Grantor, such suits and proceedings as it may deem expedient to protect endorsed or enforce the Liens securing the Second Lien Obligations assigned in blank or the Collateral Documents to which in favor of the Collateral Agent or Trustee is a party any nominee or to prevent any impairment nominees of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or sub-agent appointed by the Collateral Agent.
Appears in 2 contracts
Samples: Pledge Agreement (American Casino & Entertainment Properties LLC), Pledge Agreement (American Casino & Entertainment Properties LLC)
Collateral Agent. (a) The Issuer hereby appoints Wilmington TrustCollateral Agent shall not be liable for any action taken, National Associationsuffered, or omitted to be taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement or any other Loan Document. The rights, privileges, protections, immunities and benefits given to the Collateral Agent, including its right to be indemnified, are extended to, and shall be enforceable by, the Collateral Agent in each of its capacities hereunder, and each agent, custodian and other Person employed to act on behalf hereunder. The Collateral Agent may request that any Loan Party or the Administrative Agent deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Agreement or any of the Secured Parties other Loan Documents, which certificate may be signed by any person authorized to sign such a certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded. The permissive right of the Collateral Agent to take or refrain from taking action hereunder or under any of the other Loan Documents shall not be construed as a duty. Money held by the Collateral Agent under this Indenture and each Agreement or under any of the other Loan Documents need not be segregated from other funds except to the extent required by law. The Collateral Agent shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Borrower. The Collateral Agent may refrain from taking any action in any jurisdiction if, in its opinion, the taking of such action in that jurisdiction would be contrary to any law of that jurisdiction or of the State of New York, it would otherwise render it liable to any Person in that jurisdiction or the State of New York, the taking of such action would require it to obtain any license or otherwise qualify to do business or subject it to taxation in such jurisdiction, it would not have the power or authority to take such action in such jurisdiction by virtue of any law in that jurisdiction or in the State of New York, or it is determined by any court or other competent authority in that jurisdiction or in the State of New York that it does not have such power or authority. Anything in this Agreement or in any of the Loan Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to notwithstanding, in no event shall the Collateral Agent by the terms be liable for special, indirect, consequential or punitive loss or damage of this Indenture and the Collateral Documentsany kind whatsoever (including but not limited to loss of profit), and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of even if the Collateral Agent has been advised as to the likelihood of such loss or damage and neither the Trustee nor any regardless of the Holders shall have any rights as a third party beneficiary form of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreementsaction. The Collateral Agent shall not be liable for any action taken error of judgment made in good faith by an officer or not taken by officers of the Collateral Agent, unless it shall be conclusively determined in the absence of its own gross negligence or willful misconduct (as determined a final non-appealable judgment by a court of competent jurisdiction that the Collateral Agent was grossly negligent or acting with willful misconduct in ascertaining the pertinent facts. The Collateral Agent shall have no obligation to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder.
(b) Beyond the exercise of reasonable care in the custody thereof and as otherwise specifically set forth herein, the Collateral Agent shall not have any duty as to any of the Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Collateral Agent shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Collateral Agent shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent in good faith.
(c) The Collateral Agent shall not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes gross negligence or willful misconduct, as determined by the final nonappealable decision of a finalcourt of competent jurisdiction, non-appealable order). on the part of the Collateral Agent, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of any Loan Party to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral.
(d) Any Person into which the Collateral Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Collateral Agent shall be a party, or any Person succeeding to all or substantially all of the corporate agency or corporate trust business of the Collateral Agent shall be the successor of the Collateral Agent hereunder and under the other Loan Documents, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
(e) The Collateral Agent shall be entitled to rely upon, and shall not incur upon any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document notice or other writing document (including any facsimile or electronic mail) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person. The Person or Persons (without any duty (express or implied) of the Collateral Agent may also rely upon to verify the genuineness or correctness of any statement made to it orally fact stated therein or by telephone and believed by it to have been made by propriety of the proper personsignatory or deliverer or otherwise the validity or enforceability thereof), and shall not incur any liability for relying thereon. The Collateral Agent may consult with upon advice and statements of legal counsel (who may be counsel for the Trustee)counsel, independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of in all cases (including when any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created action by the Collateral DocumentsAgent alone is authorized hereunder, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to if the Collateral Agent for elects in its sole discretion to obtain instructions from the benefit of Administrative Agent, the Secured Parties or the Required Lenders) be fully protected in acting or in refraining from acting hereunder or under any Security Document pursuant to the Collateral Documents or any lien and/or any filingwritten instructions of the Administrative Agent, or recording or otherwise creating, perfecting, continuing or maintaining any lien the Secured Parties or the perfection thereof. By accepting the Securities, each Holder will be deemed Required Lenders and any action taken or failure to have irrevocably agreed to the foregoing provisions of the prior paragraph and act pursuant thereto shall be bound by those agreements to binding on the fullest extent permitted by law.
(d) Subject to Administrative Agent and the provisions Secured Parties. Whenever in the administration of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that this Agreement the Collateral Agent shall execute and deliver the Collateral Documents deem it desirable that a matter be proved or established prior to which it is a party and all agreementstaking, power of attorneysuffering or omitting any action hereunder, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to (unless other evidence be herein specifically prescribed) may, in the terms absence of this Indenturebad faith on its part, or (ii) payments conclusively rely upon instructions from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5Administrative Agent, the Trustee shall promptly turn Secured Parties or the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor AgreementRequired Lenders.
(f) The Collateral Agent shall have no obligation whatsoever may refuse to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under perform any duty of careor exercise any power or right unless it receives indemnity reasonably satisfactory to it against any loss, disclosure, liability or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoingexpense.
(g) Notwithstanding anything else to the contrary herein, whenever reference is made in this Indenture Agreement or any Collateral Documentother Loan Document to any discretionary action by, neither consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Collateral Agent nor or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Trustee Collateral Agent, it is understood that in all cases the Collateral Agent shall be responsible forfully justified in failing or refusing to take any such action under this Agreement or such other Loan Document if it shall not have received written directions of the Administrative Agent, and neither makes any representation regardingRequired Lenders or the Secured Parties in respect of such matter. Further, the validityCollateral Agent shall be permitted to request that all instructions and directions of the Administrative Agent, effectiveness Required Lenders or priority of the Secured Parties provided to the Collateral Agent hereunder or under the other Security Documents be in writing (and, in such a case, the Collateral Agent shall be excused from following any such instructions or directions that are not in writing). This provision is intended solely for the benefit of the Collateral Documents or the security interests or Liens Agent and is not intended to be created therebyand will not entitle the other parties hereto to any defense, claim or counterclaim, or confer any rights or benefits on any party hereto.
(h) The benefits, protections and indemnities agreements in this Section 8.08 shall survive the payment in full of the Trustee hereunder, as applicable Secured Obligations and the termination of this Indenture shall apply mutatis mutandis to Agreement and the Security Documents and the resignation or removal of the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests exercise of the Holders in the Collateral, including power to institute Write-Down and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral AgentConversion Powers by a Resolution Authority.
Appears in 2 contracts
Samples: Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.)
Collateral Agent. (a) The Issuer hereby appoints Wilmington TrustCollateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, National Associationand any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act on behalf in preservation of the Secured Parties security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in the other Note Documents with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law and instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s) (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties circumstances as are expressly delegated to provided in the Note Documents); provided that the Collateral Agent by shall not be required to take any action that, in its opinion or the terms opinion of this Indenture and the Collateral Documentsits counsel, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of may expose the Collateral Agent and neither the Trustee nor to liability or that is contrary to any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral DocumentsNote Document or Applicable Laws, and the exercise by the Collateral Agent of any rights or remedies (3) except as expressly set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision in the Note Documents to the contrary contained elsewhere in this Indenture or the Collateral Documentswhich it is a party, the Collateral Agent shall not have any duties duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or responsibilities except those expressly set forth any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreementsany capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s) (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct (as determined by the final and non-appealable judgment of a court of competent jurisdiction jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a final, non-appealable order“notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s) from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s) from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s) as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper personPerson (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper personPerson (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee)counsel, independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(bg) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, At all times when the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, not itself the Collateral Agent:
(i) shall not be subject , the Company will deliver to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in which shall deliver to the absence Holders of its own gross negligence or willful misconduct or (C) in reliance on a certificate Notes, copies of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other all Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be Documents delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted Agent and copies of all documents delivered to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 2 contracts
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees has been appointed to act as such. The provisions of this Section 13.03 are solely for the benefit Collateral Agent hereunder by each Secured Party by their acceptance of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order)benefits hereof. The Collateral Agent shall be entitled to rely uponobligated, and shall not incur have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper personrights, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement and the terms of an Intercreditor Securities Purchase Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the written consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) , no amendment, modification, termination, or consent shall not be responsible for effective if the effect thereof would release all or substantially all of the Collateral except as expressly provided herein. In furtherance of the foregoing provisions of this Section, each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have any duty no right individually to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of realize upon any of the covenantsCollateral hereunder, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to it being understood and agreed by such Secured Party that all rights and remedies hereunder may be created exercised solely by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the each Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act Party in accordance with the terms thereofof this Section. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If resign at any time by giving thirty (30) days’ prior written notice thereof to each Secured Party and the Grantors, and Collateral Agent may be removed at any time with or times without cause by an instrument or concurrent instruments in writing delivered to the Trustee shall receive Grantors and Collateral Agent signed by the parties holding more than 50% of the Secured Obligations (i) by payment, foreclosure, set-off or otherwise, the “Requisite Parties”). Upon any proceeds such notice of Collateral resignation or any payments with respect to such removal, Requisite Parties shall have the Obligations arising underright, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or upon five (ii5) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over Business Days’ notice to the Collateral Agent, in kindfollowing receipt of the Grantors’ consent (which shall not be unreasonably withheld or delayed and which shall not be required while an Event of Default exists), to appoint a successor Collateral Agent. Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, that successor shall become Collateral Agent under this Agreement, and such successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Collateral Agent under this Agreement, and the retiring or removed Collateral Agent under this Agreement shall promptly (i) transfer to such endorsements successor Collateral Agent all sums, Securities and other items of Collateral held hereunder, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Collateral Agent under this Agreement, and (ii) execute and deliver to such successor Collateral Agent such amendments to financing statements, and take such other actions, as may be required necessary or appropriate in connection with the assignment to negotiate such successor Collateral Agent of the same security interests created hereunder, whereupon such retiring or removed Collateral Agent shall be discharged from its duties and obligations under this Agreement. After any retiring or removed Collateral Agent’s resignation or removal hereunder as the Collateral Agent, the provisions of this Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it under this Agreement while it was the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreementhereunder.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 2 contracts
Samples: Pledge and Security Agreement (St Cloud Capital Partners Lp), Pledge and Security Agreement (Prolong International Corp)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Indenture, the Collateral Documents and the Intercreditor Agreements and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture Indenture, the Collateral Documents and the Collateral DocumentsIntercreditor Agreements, and Wilmington Trustconsents and agrees to the terms of the Intercreditor Agreements and each Collateral Document, National Association as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as suchsuch on the express conditions contained in this Section 12.9. The provisions of this Section 13.03 12.9 are solely for the benefit of the Collateral Agent and neither none of the Trustee Trustee, any of the Holders nor any of the Holders Grantors shall have any rights as a third party beneficiary of any of the provisions contained hereinherein other than as expressly provided in Section 12.4. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions provision of this Indenture, the Intercreditor Agreement Agreements and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or Indenture, the Collateral DocumentsDocuments and the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and or otherwise exist against the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor AgreementAgent. Without limiting the generality of the foregoing and subject sentence, the use of the term “agent” in this Indenture with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom, and is continuing;intended to create or reflect only an administrative relationship between independent contracting parties.
(iib) shall not have The Collateral Agent may perform any duty to take any discretionary action or exercise any discretionary powersof its duties under this Indenture, except discretionary rights and powers expressly contemplated by the Collateral Documents or the Intercreditor Agreement that Agreements by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the Collateral Agent is required respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates, (a “Related Person”) and shall be entitled to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty advice of counsel concerning all matters pertaining to disclosesuch duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be liable responsible for the failure to disclosenegligence or willful misconduct of any receiver, any information relating to the Issuer agent, employee, attorney-in-fact or any Related Person that it selects as long as such selection was made in good faith.
(c) None of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
respective Related Persons shall (ivi) shall not be liable for any action taken or not omitted to be taken by it any of them under or in connection with this Indenture or the transactions contemplated hereby (A) with the consent or at the request of the Trustee, (B) in the absence of except for its own gross negligence or willful misconduct misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (Cii) be responsible in reliance on a certificate of an authorized officer any manner to any of the Issuer stating that such action is permitted Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the terms of Issuer, the Intercreditor Agreement Co-Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral DocumentAgent under or in connection with, this Indenture, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents or the Intercreditor Agreements, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) 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 Issuers or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be deemed not fully justified in failing or refusing to have actual knowledge take any action under this Indenture, the Collateral Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by Holders of a Responsible Officer majority in aggregate principal amount of the Collateral Agent;
(v) Notes as it determines and, if it so requests, it shall not first be responsible for or have any duty indemnified to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created its satisfaction by the Collateral Documents, (E) the value or the sufficiency of Holders against any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power liability and expense which may be incurred by it by reason of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereoftaking or continuing to take any such action. The Collateral Agent shall hold (directly in all cases be fully protected in acting, or through in refraining from acting, under this Indenture, the Collateral Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any agent) and is directed by each Holder action taken or failure to so hold, and act pursuant thereto shall be entitled to enforce on behalf binding upon all of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral AgentHolders.
(e) If at The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any time Default or times Event of Default, unless a Trust Officer of the Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments take such action with respect to the Obligations arising under, such Default or relating to, this Indenture, except for any such proceeds or payments received Event of Default as may be requested by the Trustee from in accordance with Article VI or the Collateral Agent pursuant to the terms Holders of this Indenture, or (ii) payments from the Collateral Agent a majority in excess aggregate principal amount of the amount required Notes (subject to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor AgreementSection 12.9).
(f) The Collateral Agent shall have no obligation whatsoever may resign at any time by notice to the Trustee or any and the Issuers, such resignation to be effective upon the acceptance of the Holders a successor agent to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the its appointment as Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to . If the Collateral Agent pursuant resigns under this Indenture, the Issuers shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to this Indenture or any Collateral Documents, it being understood and agreed that in respect the intended effective date of the Collateral, or any act, omission, or event related theretoresignation of the Collateral Agent (as stated in the notice of resignation), the Collateral Agent shall have no other duty or liability whatsoever may appoint, after consulting with the Trustee, subject to the Trustee or any Holder as to any consent of the foregoing.
Issuers (g) Notwithstanding anything which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Issuers pursuant to the contrary preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in this Indenture or any Collateral Document, neither the notice of resignation) the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority entitled to petition a court of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.competent jurisdiction to
Appears in 2 contracts
Samples: Indenture (Burger King Worldwide, Inc.), Indenture (New Red Canada Partnership)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, all the Collateral Documents to which it is party rights and protections provided in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or expertsFirst Lien Security Documents.
(b) Subject to Section 7.01, neither the provisions Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Intercreditor Agreements and Security Documents, for the Collateral Documentsobtaining or maintaining insurance on any Collateral, for the creation, perfection, priority, sufficiency or protection of any First Priority Lien, or any defect or deficiency as to any such matters. Beyond the exercise of reasonable care in the custody thereof, the Trustee shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Collateral Agent are authorized and empowered Trustee shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Trustee shall be deemed to receive for have exercised reasonable care in the benefit custody of the Holders any funds collected or distributed under Collateral in its possession if the Collateral Documents is accorded treatment substantially equal to that which it accords its own property and Intercreditor Agreements to which shall not be liable or responsible for any loss or diminution in the Collateral Agent value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenturein good faith.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary Subject to the provisions of any such intercreditor agreement or other agreements or documentsFirst Lien Security Documents and the First Lien Intercreditor Agreement, (Bi) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and shall direct the Collateral Agent are authorized to take and (ii) except as directed by the Trustee as required or refrain from taking permitted by this Indenture and any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject other representatives or pursuant to the Collateral Security Documents, the holders acknowledge that Collateral AgentAgent will not be obligated:
(i1) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien act upon directions purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; andit by any other Person;
(vi2) shall not be responsible to foreclose upon or liable for creating, preserving, perfecting otherwise enforce any First Priority Lien; or
(3) to take any other action whatsoever with regard to any or validating the security interest granted to the Collateral Agent for the benefit all of the Secured Parties pursuant to the Collateral First Priority Liens, Security Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by lawCollateral.
(d) Subject to the provisions The holders of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees Notes agree that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on rights, privileges, protections, immunities, indemnities and benefits provided to the Collateral for their benefit, subject to Agent by the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Security Documents. The Holders may only act Furthermore, each holder of a Note, by written instruction to the Trusteeaccepting such Note, subject consents to the terms hereof, which shall instruct of and authorizes and directs the Trustee (in each of its capacities) and the Collateral AgentAgent to enter into and perform the First Lien Intercreditor Agreement, Second Lien Intercreditor Agreement and Security Documents in each of its capacities thereunder.
(e) If the Issuer (i) Incurs First Priority Lien Obligations at any time when the First Lien Intercreditor Agreement is not in effect or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, at any proceeds of Collateral or any payments with respect time when Indebtedness constituting First Priority Lien Obligations entitled to the Obligations arising underbenefit of an existing intercreditor agreement is concurrently retired, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or and (ii) payments from the Collateral Agent in excess of the amount required to be paid to directs the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same deliver to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture an Officers’ Certificate so stating and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct requesting the Collateral Agent to institute and maintain, such suits and proceedings enter into an intercreditor agreement (on substantially the same terms as it may deem expedient to protect the First Lien Intercreditor Agreement in effect on the Issue Date) in favor of a designated agent or enforce representative for the Liens securing holders of the Second First Priority Lien Obligations or so Incurred, the Collateral Documents to which holders acknowledge that the Collateral Agent or Trustee is a party or hereby authorized and directed to prevent any impairment of Collateral by any acts that may be unlawful or in violation of enter into such intercreditor agreement, bind the Collateral Documents or holders on the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, terms set forth therein and such suits perform and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect observe its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agentobligations thereunder.
Appears in 2 contracts
Samples: Indenture (CAESARS ENTERTAINMENT Corp), Indenture (CAESARS ENTERTAINMENT Corp)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to hold the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth security interests in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver under the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed as contemplated by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except and any and all proceeds thereof, for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5benefit of, the Trustee shall promptly turn the same over to the Collateral AgentSecured Parties, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that without limiting the Collateral Agent’s Liens have been properly or sufficiently or lawfully createdrights, perfectedincluding under this Section 17.02, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all act in preservation of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or security interest in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) . The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(jb) Subject to the Intercreditor Agreements, Neither the Trustee is authorized and empowered to institute and maintain, or direct nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including without limitation not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to institute and maintainthe maintenance of the Collateral, or for any defect or deficiency as to any such suits and proceedings as it may deem expedient matters, or for any failure to protect demand, collect, foreclose or realize upon or otherwise enforce any of the Liens securing the Second Lien Obligations or the Collateral Documents to which or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or Trustee is a party agents will be responsible or liable for making any filings or recordings to prevent any impairment of Collateral by any acts that may be unlawful perfect or in violation maintain the perfection of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders Agent’s Lien in the Collateral, including power without limitation, the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to institute the U.S. Patent and maintain suits Trademark Office or proceedings U.S. Copyright Office.
(c) The Collateral Agent will be subject to restrain such directions as may be given to it by the Trustee from time to time (as required or permitted by this Indenture). Except as directed by the Trustee as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of HoldersCollateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee or under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) At all times when the Trustee is not itself the Collateral Agent, the Company will deliver to the Trustee copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents.
Appears in 2 contracts
Samples: Indenture (Orexigen Therapeutics, Inc.), Indenture (Orexigen Therapeutics, Inc.)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees has been appointed to act as such. The provisions of this Section 13.03 are solely for the benefit Collateral Agent hereunder by each Secured Party by their acceptance of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order)benefits hereof. The Collateral Agent shall be entitled to rely uponobligated, and shall not incur have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper personrights, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement and the terms of an Intercreditor Securities Purchase Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the written consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) , no amendment, modification, termination, or consent shall not be responsible for effective if the effect thereof would release all or substantially all of the Collateral except as expressly provided herein. In furtherance of the foregoing provisions of this Section, each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have any duty no right individually to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of realize upon any of the covenantsCollateral hereunder, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to it being understood and agreed by such Secured Party that all rights and remedies hereunder may be created exercised solely by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the each Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act Party in accordance with the terms thereofof this Section. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If resign at any time by giving thirty (30) days’ prior written notice thereof to each Secured Party and Grantor, and Collateral Agent may be removed at any time with or times without cause by an instrument or concurrent instruments in writing delivered to Grantor and Collateral Agent signed by the Trustee shall receive parties holding more than 50% of the Secured Obligations (i) by payment, foreclosure, set-off or otherwise, the “Requisite Parties”). Upon any proceeds such notice of Collateral resignation or any payments with respect to such removal, Requisite Parties shall have the Obligations arising underright, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or upon five (ii5) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over Business Days’ notice to the Collateral Agent, in kindfollowing receipt of Grantor’s consent (which shall not be unreasonably withheld or delayed and which shall not be required while an Event of Default exists), to appoint a successor Collateral Agent. Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, that successor shall become Collateral Agent under this Agreement, and such successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Collateral Agent under this Agreement, and the retiring or removed Collateral Agent under this Agreement shall promptly (i) transfer to such endorsements successor Collateral Agent all sums, Securities and other items of Collateral held hereunder, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Collateral Agent under this Agreement, and (ii) execute and deliver to such successor Collateral Agent such amendments to financing statements, and take such other actions, as may be required necessary or appropriate in connection with the assignment to negotiate such successor Collateral Agent of the same security interests created hereunder, whereupon such retiring or removed Collateral Agent shall be discharged from its duties and obligations under this Agreement. After any retiring or removed Collateral Agent’s resignation or removal hereunder as the Collateral Agent, the provisions of this Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it under this Agreement while it was the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreementhereunder.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 2 contracts
Samples: Security Agreement (St Cloud Capital Partners Lp), Security Agreement (Viking Systems Inc)
Collateral Agent. (a) The Issuer hereby appoints Wilmington TrustAt the direction of the Holders of the Notes, National Associationthe Trustee shall appoint a collateral agent, which shall be authorized to act on behalf of and for the Secured Parties benefit of the Holders of the Notes. In accordance with the foregoing, on the Issue Date, Deutsche Bank Trust Company Americas is hereby appointed by the Trustee, at the direction of the Holders of the Notes, to serve as Collateral Agent for the benefit of the Holders of the Notes.
(b) The Collateral Agent appointed by the Trustee as provided in Section 10.08(a) hereof shall be the secured party of record with respect to the security interests created in respect of the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements shall hold such Collateral for the benefit of the Holders of the Notes.
(c) The Collateral Agent shall hold (directly or through co-agents), and shall be entitled to exercise such powers and perform such duties as are expressly delegated to enforce, all Liens on the Collateral Agent created by the Collateral Documents in accordance with the terms of this Indenture and the Collateral Documents. Neither the Company or any of the Guarantors nor their respective Affiliates may serve as Collateral Agent.
(d) Except as provided in the Collateral Documents, the Collateral Agent shall not be obligated to: (i) act upon directions purported to be delivered to it by any Person; (ii) foreclose upon or otherwise enforce any Lien; or (iii) take any other action whatsoever pursuant to any or all of the Collateral Documents, the Liens created thereby or the Collateral.
(e) A resignation or removal of the Collateral Agent and Wilmington Trustappointment of a successor Collateral Agent will become effective pursuant to the terms of the Collateral Documents.
(f) The Collateral Agent shall be entitled to all the rights, National Association agrees protections, privileges and immunities granted to act the Trustee under this Indenture. Whenever reference is made in this Indenture or the Collateral Documents to any action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Collateral Agent, it is understood that in all cases the Collateral Agent shall be acting, giving, withholding, suffering, omitting, taking or otherwise undertaking and exercising the same (or shall not be undertaking and exercising the same) as suchdirected by the Trustee. The provisions of this Section 13.03 are This provision is intended solely for the benefit of the Collateral Agent and neither its successors and permitted assigns and is not intended to and will not entitle the Trustee nor other parties hereto to any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenturedefense, the Intercreditor Agreement and the Collateral Documentsclaim or counterclaim, and the exercise by the Collateral Agent of or confer any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding benefits on any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, party hereto.
(g) The duties of the Collateral Agent shall not have any duties or responsibilities except those expressly set forth be mechanical and administrative in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreementsnature. The Collateral Agent shall not be liable for have, by reason hereof or any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, a fiduciary relationship with any Holder, the Trustee Company, any Guarantor or any other Person, and the Collateral Agent are authorized and empowered to receive for the benefit nothing herein or in any of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) inferred or implied, is intended to or shall not be subject so construed as to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that impose upon the Collateral Agent is required to exercise;
(iii) shall notany duties, responsibilities or obligations in respect hereof or of any of the Collateral Documents, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer herein or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by lawtherein.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 2 contracts
Samples: Indenture (Maxcom Telecommunications Inc), Indenture
Collateral Agent. (a) The Issuer hereby Each Secured Party irrevocably designates, appoints Wilmington Trust, National Association, and authorizes Xxxxxxxxxx to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise xxxxxxxxx, with such powers and perform such duties as are expressly specifically delegated to the Collateral Agent by the terms of this Indenture Agreement, together with such other powers as are reasonably incidental thereto and the Collateral DocumentsAgent xxxxxx accepts such appointment. Agent shall be obligated, and Wilmington Trusthas the right hereunder, National Association agrees to act as suchmake demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including the release or substitution of Collateral), solely at the direction of the Required Secured Parties. The In furtherance of the foregoing provisions of this Section 13.03 are 9(a), each Secured Party, by its acceptance of the benefits hereof, agrees that it has no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by Agent for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent Secured Parties in accordance with the provisions terms of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Section 9.
(b) Agent shall not be liable responsible to the Secured Parties for any action taken or not omitted to be taken by it hereunder or under any other document or instrument referred to or provided for herein or in the absence of connection herewith, except for its own gross negligence or willful misconduct (as determined by a final non-appealable judgment of a court of competent jurisdiction in a final, non-appealable order). The Collateral jurisdiction.
(c) Agent shall be entitled to rely uponupon any certification, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document notice or other writing communication (including any thereof by telephone, or email) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person. The Collateral Agent may also rely upon any statement made to it orally Person or by telephone and believed by it to have been made by the proper personPersons, and shall not incur any liability for relying thereon. The Collateral Agent may consult with upon advice and statements of legal counsel (who may be counsel for the Trustee)counsel, independent accountants and other experts selected by itAgent in good faith. As to any matters not expressly provided for by this Agreement, Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder or thereunder in accordance with instructions given by the Required Secured Parties and any action taken or failure to act pursuant thereto shall be binding on all Secured Parties.
(d) The Secured Parties agree to indemnify Agent (to the extent not reimbursed by the Grantor hereunder and without limiting any obligations of the Grantor hereunder) ratably, in accordance with their pro rata share, for any and all claims of any kind and nature whatsoever that may be imposed on, incurred by or asserted against Agent arising out of or by reason of any investigation in or in any way relating to or arising out of this Agreement or any other documents contemplated by or referred to herein or the transactions contemplated hereby (including the costs and expenses that Agent is obligated to pay hereunder) or the enforcement of any of the terms hereof or of any such other documents; provided, that, no Secured Party shall be liable for any action taken of the foregoing to the extent it arises from the gross negligence or not taken willful misconduct of Agent as determined by it in accordance with a final non-appealable judgment of a court of competent jurisdiction. The foregoing indemnity shall survive the advice payment of the Secured Obligations and the termination or non-renewal of this Agreement; provided, further, that no Secured Party (nor any such counselof its respective subsidiaries or affiliates) shall be liable for any indirect, accountants special, punitive or expertsconsequential (including lost profits) damages.
(be) Subject The powers conferred on Agent hereunder are solely to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive protect Agent’s interest (for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(cSecured Parties) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable impose any duty upon it to exercise any such powers without the direction of the Required Secured Parties. Except for the failure to disclose, any information relating to the Issuer or any exercise of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any good faith and of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) reasonable care in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and accounting for monies actually received by a Responsible Officer Agent (on behalf of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent and for the benefit of the Secured Parties pursuant and Agent) hereunder, Agent shall have no duty as to any Collateral or as to the Collateral Documents taking of any necessary steps to preserve rights against prior parties or any lien and/or other rights pertaining to any filingCollateral. Agent shall have exercised reasonable care in the custody and preservation of Collateral in its possession if such Collateral is accorded treatment substantially equal to that which Agent accords its own property. Neither Agent nor any of its directors, officers, employees or agents shall be liable for failure to demand, collect or realize upon all or any part of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of the Grantor or otherwise. If the Grantor fails to perform any agreement contained herein, Agent may itself perform, or recording or otherwise creatingcause performance of, perfectingsuch agreement, continuing or maintaining any lien or and the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions expenses of the prior paragraph and Agent incurred in connection therewith shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received payable by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor AgreementGrantor under Section 12.
(f) The Collateral Agent shall have no obligation whatsoever Secured Parties hereby irrevocably authorize Agent, with the consent of the Required Secured Parties, to submit a bid at a public or private sale in connection with the Trustee purchase of all or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect portion of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to in which any of the foregoing.
Secured Obligations may be used and applied as a credit on account of the purchase price (ga “credit bid”) Notwithstanding anything to the contrary in this Indenture and purchase at any such sale (either directly or through one or more entities established for such purpose) all or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any portion of the Collateral Documents or on behalf of and for the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities benefit of the Trustee hereunderSecured Parties (but not as agent for any individual Secured Party or Secured Parties, as applicable unless the Secured Parties shall otherwise unanimously agree in writing). Each Secured Party agrees that it will not exercise any right that it might otherwise have to credit bid at any sales of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one all or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation portion of the Collateral Documents conducted under the provisions of the UCC, or the Intercreditor Agreements to which the Collateral Agent Bankruptcy Code, foreclosure sales or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests other similar dispositions of the Holders in the Collateral, including power unless such Secured Party offers each other Secured Party a bona fide opportunity to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative participate in such foreclosure sale or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if similar dispositions of Collateral on a ratable basis and on the enforcement of, or compliance with, same terms as such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral AgentSecured Party proposing such transaction.
Appears in 2 contracts
Samples: Security Agreement (Oramed Pharmaceuticals Inc.), Security Agreement (Scilex Holding Co)
Collateral Agent. (a) The Issuer Each Lender party hereto, and by receiving the benefits of the Specified Security Transactions each other Lender, hereby irrevocably appoints Wilmington Trust, National Association, the Collateral Agent to act on its behalf of the Secured Parties as the Collateral Agent under this Indenture the Security Documents and each of authorizes the Collateral Documents and Intercreditor Agreements Agent to take such actions on its behalf and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Without limiting the foregoing, notwithstanding anything in the Term Loan Agreement to the contrary, each Lender party hereto, and by receiving the benefits of this Indenture the Specified Security Transactions each other Lender, hereby irrevocably authorizes and directs the Collateral DocumentsAgent to enter into, or amend, (a) any Security Documents as the Collateral Agent may deem reasonably necessary or appropriate or as the Collateral Agent may be authorized or instructed to take pursuant to the Revolving Credit Agreement (including, without limitation, in order to include additional indebtedness as a secured obligation thereunder) and Wilmington Trust(b) any intercreditor agreement (or similar agreements with the same or similar purpose) as agent for it and on its behalf as the Collateral Agent may deem reasonably necessary or appropriate or as the Collateral Agent may be authorized or instructed to take pursuant to the Revolving Credit Agreement (including, National Association without limitation, with respect to any intercreditor arrangements with the trustee, agent, holders or lenders in respect of additional indebtedness that will be pari passu or junior to the Secured Obligations) and agrees that the Collateral Agent, may take such actions on its behalf as are contemplated by the terms of any Security Document. Any such Security Document entered into by the Collateral Agent on behalf of the Lenders shall be binding upon each Lender. The Collateral Agent shall notify the Lenders of the effectiveness of any Security Document when executed and shall provide a copy of the executed agreement to act as suchthe Lenders; provided that a failure to do so shall not affect the effectiveness thereof. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders Lenders, and no Grantor shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or expertsprovisions.
(b) Subject to the The provisions of the Intercreditor Agreements Security Documents and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Revolving Credit Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights provisions relating to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one resignation or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct removal of the Collateral Agent to institute and maintain, such suits the powers and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which duties and immunities of the Collateral Agent or Trustee is a party or to prevent are incorporated herein by this reference and shall survive any impairment of Collateral by any acts that may be unlawful or in violation termination of the Collateral Documents Revolving Credit Agreement or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral AgentNotes Purchase Agreements.
Appears in 2 contracts
Samples: Term Loan Agreement, Term Loan Agreement (Natural Resource Partners Lp)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf Trustee and each of the Secured Parties as Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture and the Collateral Documents, and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trustconsents and agrees to the terms of each Collateral Document, National Association as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as such. The provisions of such on the express conditions contained in this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein12.07. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement Indenture and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or and the Collateral Documents, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth in this Indenture, the Collateral Documents to which it is party herein and in the Intercreditor Agreements. The Collateral Documents, to which the Collateral Agent is a party, nor shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). The Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements read into this Indenture and the Collateral Documents, the Trustee and or otherwise exist against the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor AgreementAgent. Without limiting the generality of the foregoing and subject sentence, the use of the term “agent” in this Indenture with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom, and is continuing;intended to create or reflect only an administrative relationship between independent contracting parties.
(iib) shall not have The Collateral Agent may perform any duty to take any discretionary action of its duties under this Indenture or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents by or Intercreditor Agreement that through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the Collateral Agent is required to exercise;
respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclosea “Related Person”), and shall not be liable for the failure entitled to discloseadvice of counsel concerning all matters pertaining to such duties, any information relating and shall be entitled to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates act upon, and shall be fully protected in any capacity;
(iv) shall not be liable for any taking action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted upon any advice or opinion given by the terms of the Intercreditor Agreement or any other Collateral Documentlegal counsel. The Collateral Agent shall not be deemed not responsible for the negligence or misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and with due care.
(c) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have actual knowledge 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 Issuers or any Event other grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. Except as otherwise expressly provided herein, the Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture or the Collateral Documents unless it shall first receive such advice or concurrence of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and received all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Collateral Documents in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(d) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Collateral Agent;
(v) Agent shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) received written notice from the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein Trustee or the occurrence of any Issuers referring to this Indenture, describing such Default or Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph Default and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees stating that the Collateral Agent shall execute and deliver the Collateral Documents to which it such notice is a party and all agreements, power “notice of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. default.” The Collateral Agent shall hold (directly take such action with respect to such Default or through any agent) and is directed Event of Default as may be requested by each Holder to so hold, and shall be entitled to enforce on behalf the Trustee in accordance with Article VI or the Holders of a majority in aggregate principal amount of the Holders on the Collateral for their benefit, Notes (subject to this Section 12.07 and the provisions of the First Lien Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent).
(e) If The Collateral Agent may resign at any time or times by 30 days’ written notice to the Trustee shall receive (i) by paymentand the Issuers, foreclosure, set-off or otherwise, any proceeds such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral or any payments with respect to Agent. If the Obligations arising under, or relating to, Collateral Agent resigns under this Indenture, except for any such proceeds or payments received by the Trustee from Issuers shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent (as stated in the notice of resignation), the Trustee, at the direction of the Holders of a majority of the aggregate principal amount of the Notes then outstanding, may appoint a successor collateral agent, subject to the consent of the Issuers (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default). If no successor collateral agent is appointed and consented to by the Issuers pursuant to the terms preceding sentence within thirty (30) days after the intended effective date of this Indenture, or resignation (iias stated in the notice of resignation) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or 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 Section 12.07 (and Section 7.07 and 7.11 hereof) 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 whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything actions taken or omitted to the contrary in this Indenture or any Collateral Document, neither be taken by it while it was the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or under this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 2 contracts
Samples: Indenture (Organon & Co.), Indenture (Organon & Co.)
Collateral Agent. (a) The Issuer Each Investor hereby irrevocably appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture as its agent and each of authorizes the Collateral Documents and Intercreditor Agreements Agent to take such actions on its behalf and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture hereof, together with such actions and the Collateral Documents, and Wilmington Trust, National Association agrees to act powers as suchare reasonably incidental thereto. The provisions of this Section 13.03 are solely for the benefit of Person serving as the Collateral Agent and neither the Trustee nor any of the Holders hereunder shall have the same rights and powers in its capacity as an Investor as any rights other investor and may exercise the same as a third party beneficiary though it were not the Collateral Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any of the provisions contained herein. Each Holder agrees that any action taken by Subsidiary or other Affiliate thereof as if it were not the Collateral Agent in accordance with hereunder. The Collateral Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the provisions generality of this Indenturethe foregoing, the Intercreditor Agreement and the Collateral Documents, and the exercise by (i) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing, (ii) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights or remedies and powers expressly contemplated by this Agreement, and (iii) except as expressly set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documentsherein, the Collateral Agent shall not have any duties duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or responsibilities except those expressly set forth any of the Subsidiaries that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreementsany capacity. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct misconduct. The Collateral Agent shall be deemed not to have knowledge of any Event of Default unless and until written notice thereof is given to the Collateral Agent by the Company or an Investor (as determined by a court and, promptly after its receipt of competent jurisdiction any such notice, it shall give each Investor and the Company notice thereof), and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (a) any statement, warranty or representation made in a finalor in connection with any Secured Transaction Document, non-appealable order)(b) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (c) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein, (d) the validity, enforceability, effectiveness or genuineness thereof or any other agreement, instrument or other document or (e) the satisfaction of any condition set forth in herein, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent. 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 reasonably believed by it to be genuine and to have been signed or sent by the proper personPerson. The Collateral Agent also may also rely upon any statement made to it orally or by telephone and reasonably believed by it to have been be made by the proper personPerson, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the TrusteeGrantors), 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.
(b) . 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, provided that no such delegation shall serve as a release of the Collateral Agent or waiver by the Company of any rights hereunder. The Collateral Agent and any such sub agent may perform any and all its duties and exercise its rights and powers through their respective affiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such sub agent and to the affiliates of the Collateral Agent and any such sub agent, and shall apply to their respective activities acting for the Collateral Agent. Subject to the provisions appointment and acceptance of the Intercreditor Agreements and the a successor Collateral DocumentsAgent as provided in this paragraph, the Trustee and the Collateral Agent are authorized may resign at any time by notifying the Investors and empowered the Company. Upon any such resignation, the Investor holding a majority of the principal amount of the Senior Secured Notes shall have the right to receive appoint a successor. If no successor shall have been so appointed by the Investor and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Investor holding a majority of the principal amount of the Senior Secured Notes, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York, or an affiliate of any such bank. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. After the Collateral Agent’s resignation hereunder, the provisions of this Article shall continue in effect for the benefit of the Holders any funds collected or distributed under the such retiring Collateral Documents Agent, its sub agents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions their respective affiliates in respect of any such intercreditor agreement actions taken or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall omitted to be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking taken by any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the them while it was acting as Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties. Each Investor acknowledges that it has, regardless of whether an Event of Default has occurred independently and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as without reliance upon the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by other Investors and based on such documents and information as it (A) with the consent or at the request of the Trusteehas deemed appropriate, (B) in the absence of made its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not credit analysis and decision to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire enter into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Transaction Documents. The Holders may only act by written instruction to the TrusteeEach Investor also acknowledges that it will, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, independently and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which reliance upon the Collateral Agent or Trustee is a party any other Investors and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or to prevent not taking action under or based upon any impairment of Collateral by Secured Transaction Document, any acts that may be unlawful related agreement or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agentdocument furnished thereunder.
Appears in 2 contracts
Samples: Guarantee and Security Agreement (NeuMedia, Inc.), Guarantee and Security Agreement (NeuMedia, Inc.)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, all the Collateral Documents to which it is party rights and protections provided in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). The Collateral Agent shall be entitled to rely upon, Security Documents and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it have all of the rights and protections provided to be genuine and the collateral agent appointed pursuant to have been signed or sent by the proper person. The Collateral Agent may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or expertsCEI Credit Agreement.
(b) Subject to Section 7.01, neither the provisions Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Intercreditor Agreements Security Documents, for the obtaining or maintaining insurance on any Collateral, for the creation, perfection, priority, sufficiency or protection of any Lien securing the Notes Obligations, or any defect or deficiency as to any such matters. Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Collateral Agent shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent in good faith.
(c) Subject to the Security Documents and the First Lien Intercreditor Agreement, (i) the Trustee shall direct the Collateral Agent and (ii) except as directed by the Trustee as required or permitted by this Indenture and any other representatives or pursuant to the Security Documents, the holders acknowledge that the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any other Person;
(ii) to foreclose upon or otherwise enforce any Lien securing the Notes Obligations; or
(iii) to take any other action whatsoever with regard to any or all of the Lien securing the Notes Obligations, Security Documents or Collateral.
(d) The holders of Notes agree that the Collateral Agent shall be entitled to the rights, privileges, protections, immunities, indemnities and benefits provided to the Collateral Agent by the Security Documents. Furthermore, each holder of a Note, by accepting such Note, consents and agrees to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Collateral Agent to enter into and perform the First Lien Intercreditor Agreement (and any future First Lien Intercreditor Agreement), any Junior Lien Intercreditor Agreement and Security Documents in each of its capacities thereunder.
(e) If the Company or any applicable Restricted Subsidiary (i) Incurs First Priority Lien Obligations at any time when the First Lien Intercreditor Agreement is not in effect or at any time when Indebtedness constituting First Priority Lien Obligations entitled to the benefit of an existing intercreditor agreement is concurrently retired, and (ii) delivers to the Trustee and Collateral Agent an Officer’s Certificate so stating and requesting the Trustee and/or the Collateral Agent to enter into a First Lien Intercreditor Agreement in favor of a designated agent or representative for the holders of the First Priority Lien Obligations so Incurred, the holders acknowledge that the Trustee and the Collateral Agent is hereby authorized and directed to (and shall) enter into such intercreditor agreement, bind the holders on the terms set forth therein and perform and observe its obligations thereunder.
(f) If the Company or any applicable Restricted Subsidiary Incurs any Junior Lien Obligations and delivers to the Collateral Agent and the Trustee an Officer’s Certificate requesting the Trustee and/or the Collateral Agent enter into a Junior Lien Intercreditor Agreement with a designated agent or representative for the holders of the Junior Lien Obligations so Incurred, the Trustee and the Collateral Agent are hereby authorized and empowered directed to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents (and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(cshall) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any enter into such intercreditor agreement or other agreements or documentsagreement, (B) agrees that bind the Liens holders on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by lawperform and observe its obligations thereunder.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 2 contracts
Samples: Indenture (Caesars Entertainment, Inc.), Indenture (Caesars Entertainment, Inc.)
Collateral Agent. Notwithstanding anything to the contrary herein, the following provisions shall govern the Collateral Agent's rights, powers, obligations and duties under this Security Agreement:
(a) The Issuer Each of the Holders and the Trustee hereby designates and appoints Wilmington Trust, U.S. Bank National Association, Association to act on behalf of the Secured Parties as the Collateral Agent under this Indenture Security Agreement and each of the other Note Documents to which it is a party, and hereby authorizes the Collateral Agent to take such actions on its behalf under the provisions of this Security Agreement and such other Note Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Security Agreement and the Collateral such other Note Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture Security Agreement or the Collateral Documents, any other Note Documents the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth in this IndentureSecurity Agreement or such other Note Documents or any fiduciary relationship with any parties to the First-Lien Documents or Second-Lien Note Documents, and no implied covenants, functions or responsibilities shall be read into this Security Agreement or otherwise exist against Collateral Agent.
(b) In no event shall the Collateral Agent have any obligation to inquire or investigate as to the correctness, veracity, or content of any instruction received from any other Note Documents. In no event shall the Collateral Agent have any liability in respect of any such instruction received by it and relied on with respect to any action or omission taken pursuant thereto.
(c) With respect to the Collateral Agent's duties under this Security Agreement or any of the Note Documents, the Collateral Agent may act through its attorneys, accountants, experts and such other professionals as the Collateral Agent deems necessary, advisable or appropriate and shall not be responsible for the misconduct or negligence of any attorney, accountant, expert or other such professional appointed with due care.
(d) Neither the Collateral Agent nor any of its experts, officers, directors, employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any action lawfully taken or omitted to be taken by it under or in connection with this Security Agreement or any of the Note Documents (except for its gross negligence or willful misconduct), or (ii) responsible in any manner for any recitals, statements, representations or warranties (other than its own recitals, statements, representations or warranties) made in this Security Agreement or any of the other Note Documents or in any certificate, report, statement or other document referred to which it is party or provided for in, or received by the Collateral Agent under or in connection with, this Security Agreement or any of the Note Documents or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Security Agreement or any of the Note Documents or for any failure of the Grantors or any other Person to perform their obligations hereunder and in the Intercreditor Agreementsthereunder. The Collateral Agent shall not be liable under any obligation to any Person to ascertain or to inquire as to (i) the observance or performance of any of the agreements contained in, or conditions of, this Security Agreement or any of the Note Documents or to inspect the properties, books or records of the Grantors, (ii) whether or not any representation or warranty made by any Person in connection with this Security Agreement or any Note Documents is true, (iii) the performance by any Person of its obligations under this Security Agreement or any of the Note Documents or (iv) the breach of or default by any Person of its obligations under this Security Agreement or any of the Note Documents.
(e) The Collateral Agent shall not be bound to (i) account to any Person for any sum or the profit element of any sum received for its own account; (ii) disclose to any other Person any information relating to the Person if such disclosure would, or might, constitute a breach of any law or regulation or be otherwise actionable at the suit of any Person; (iii) be under any fiduciary duties or obligations other than those for which express provision is made in this Security Agreement or in any of the other Second Priority Debt Documents to which it is a party; or (iv) be required to take any action taken that it reasonably believes, based on advice of counsel, is in conflict with any applicable law, this Security Agreement or any of the other Second Priority Debt Documents, or any order of any court or administrative agency;
(f) The Collateral Agent shall be authorized to but shall not taken by it be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or monitoring or maintaining the perfection of any security interest in the absence Collateral. It is expressly agreed, to the maximum extent permitted by applicable law, that the Collateral Agent shall have no responsibility for (i) taking any necessary steps to preserve rights against any Person with respect to any Collateral or (ii) taking any action to protect against any diminution in value of its own the Collateral, but, in each case (A) subject to the requirement that the Collateral Agent may not act or omit to take any action if such act or omission would constitute gross negligence or willful misconduct and (B) the Collateral Agent may do so and all expenses reasonably incurred in connection therewith shall be part of the Secured Obligations.
(g) The Collateral Agent shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent in good faith, except to the extent of the Collateral Agent's gross negligence or willful misconduct.
(h) The Collateral Agent shall not be responsible for, nor incur any liability with respect to, (i) the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the security interest in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part under this Security Agreement or any of the other Note Documents, except to the extent such action or omission constitutes gross negligence or willful misconduct on the part of the Collateral Agent, (ii) the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iii) the validity of the title of the Grantors to the Collateral, (iv) insuring the Collateral or (v) the payment of taxes, charges or assessments upon the Collateral or otherwise as determined to the maintenance of the Collateral.
(i) Notwithstanding anything in this Security Agreement or any of the Note Documents to the contrary, (i) in no event shall the Collateral Agent or any officer, director, employee, representative or agent of the Collateral Agent be liable under or in connection with this Security Agreement or any of the Note Documents for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including but not limited to lost profits or loss of opportunity, whether or not foreseeable, even if the Collateral Agent has been advised of the possibility thereof and regardless of the form of action in which such damages are sought; and (ii) the Collateral Agent shall be afforded all of the rights, powers, immunities and indemnities set forth in this Security Agreement in all of the other Note Documents to which it is a signatory as if such rights, powers, immunities and indemnities were specifically set out in each such Note Documents. In no event shall the Collateral Agent be obligated to invest any amounts received by a court of competent jurisdiction in a final, non-appealable order). it hereunder.
(j) The Collateral Agent shall be entitled conclusively to rely uponrely, and shall not incur be fully protected in relying, upon any liability for relying uponnote, any noticewriting, resolution, request, direction, certificate, notice, consent, affidavit, letter, cablegram, telegram, telecopy, email, telex or teletype message, statement, instrument, order or other document or other writing conversation believed by it in good faith to be genuine and correct and to have been signed signed, sent or sent by the proper person. The Collateral Agent may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with Person or Persons and/or upon advice and/or statements of legal counsel (who may be counsel for the Trustee)counsel, independent accountants and other experts selected by it, the Collateral Agent and need not investigate any fact or matter stated in any such document. Any such statement of legal counsel shall not be liable for full and complete authorization and protection in respect of any action taken or not taken suffered by it hereunder in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Documenttherewith. The Collateral Agent shall be deemed not fully justified in failing or refusing to have actual knowledge take any action under this Security Agreement or any of any Event of Default unless and until written notice describing the other Note Documents (i) if such Event of Default is given by action would, in the Trustee or the Issuer and received by a Responsible Officer reasonable opinion of the Collateral Agent;
Agent (vwhich may be based on the opinion of legal counsel), be contrary to applicable law or any of the Note Documents, (ii) shall if such action is not be responsible provided for in this Security Agreement or have any duty to ascertain or inquire into of the other Note Documents, (Aiii) any statementif, warranty or representation made in or in connection with any Collateral Document, (B) the contents taking of any certificate, report such action hereunder or other document delivered thereunder or in connection therewith, (C) the performance or observance of under any of the covenantsNote Documents that would constitute an exercise of remedies hereunder or under any of the Note Documents it shall not first be indemnified to its satisfaction by the Holders against any and all risk of nonpayment, agreements liability and expense that may be incurred by it, its agents or other terms its counsel by reason of taking or conditions set forth therein continuing to take any such action, or (iv) if, notwithstanding anything to the occurrence contrary contained in this Security Agreement, in connection with the taking of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of such action that would constitute a payment due under any Collateral Document or any other agreement, instrument agreement or document, it shall not first have received from the Holders or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered Grantors funds equal to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereofamount payable. The Collateral Agent shall hold (directly in all cases be fully protected in acting, or through in refraining from acting, under this Security Agreement or any agent) and is directed by each Holder to so holdof the other Note Documents in accordance with a request of the requisite percentage of Holders, and such request and any action taken or failure to act pursuant thereto shall be entitled to enforce on behalf of binding upon all the other Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to and the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(ek) If at The Collateral Agent shall not be deemed to have actual, constructive, direct or indirect knowledge or notice of the occurrence of any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from Default unless and until the Collateral Agent pursuant to the terms of this Indenture, has received a written notice or (ii) payments a certificate from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) Grantors stating that a Default has occurred. The Collateral Agent shall have no obligation whatsoever either prior to or after receiving such notice or certificate to inquire whether a Default has in fact occurred and shall be entitled to rely conclusively, and shall be fully protected in so relying, on any notice or certificate so furnished to it. No provision of this Security Agreement, the Trustee Intercreditor Agreement or any of the Holders to assure that Note Documents shall require the Collateral exists Agent to expend or is owned by risk its own funds or otherwise incur any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that financial liability in the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to performance of any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or its duties under any duty of care, disclosure, or fidelity, or to continue exercisingthis Security Agreement, any of the rightsother Note Documents or the exercise of any of its rights or powers, authorities, and powers granted if it shall have reasonable grounds for believing that repayment of such funds or available adequate indemnity against such risk or liability including an advance of moneys necessary to perform work or to take the Collateral Agent pursuant action requested is not reasonably assured to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretoit, the Collateral Agent may decline to act unless it receives indemnity satisfactory to it in its sole discretion, including an advance of moneys necessary to take the action requested. The Collateral Agent shall have be under no other obligation or duty to take any action under this Security Agreement or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral other Note Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
otherwise if taking such action (i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct would subject the Collateral Agent to institute and maintaina tax in any jurisdiction where it is not then subject to a tax or (ii) would require the Collateral Agent to qualify to do business in any jurisdiction where it is not then so qualified.
(l) Any corporation into which the Collateral Agent may be merged, such suits and proceedings as or with which it may deem expedient to protect be consolidated, or enforce the Liens securing the Second Lien Obligations any corporation resulting from any merger or the Collateral Documents consolidation to which the Collateral Agent shall be a party, shall become a Collateral Agent under this Security Agreement without the execution or filing of any paper or any further act on the part of the parties hereto except for written notice to the other parties hereto.
(m) The Collateral Agent may resign as Collateral Agent at any time upon written notice to the Holders, Trustee is a party or to prevent any impairment of Collateral by any acts that and the Grantors and may be unlawful removed at any time with or without cause by the Requisite Secured Parties, with any such resignation or removal to become effective only upon the appointment of a successor Collateral Agent under this Section. If the Collateral Agent shall provide notice of its resignation or be removed as Collateral Agent, then the Requisite Secured Parties shall (and if no such successor shall have been appointed within 45 days of the Second Priority Collateral Agent's resignation or removal, the Collateral Agent may) appoint a successor Collateral Agent which successor agent shall, in violation the case of any appointment by the Collateral Agent, be reasonably acceptable to the Requisite Secured Parties, and the former Collateral Agent's rights, powers and duties as Collateral Agent shall be terminated, without any other or further act or deed on the part of such former Collateral Agent (except that the resigning Collateral Agent shall deliver all Collateral then in its possession to the successor Collateral Agent and shall execute and deliver to the successor Collateral Agent such instruments of assignment and transfer and other similar documents as such successor Collateral Agent shall deem necessary or advisable (at the joint and several expense of the Grantors)). After any retiring Collateral Agent's resignation or removal hereunder as Collateral Agent, the provisions of this Security Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Second Collateral Agent. In the event that a successor Collateral Agent is not appointed within the time period specified in this Section following the provision of a notice of resignation or removal of the Collateral Documents or the Intercreditor Agreements to which Agent, the Collateral Agent or Trustee is any other Second Priority Secured Party may petition a party or this Indenture, and such suits and proceedings as court of competent jurisdiction for the Trustee or the appointment of a successor Collateral Agent may deem expedient to preserve or protect its interests (at the joint and the interests several expense of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral AgentGrantors).
Appears in 2 contracts
Samples: Second Lien Collateral Agreement (Paperweight Development Corp), Second Lien Collateral Agreement (Paperweight Development Corp)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf Each of the Secured Lender Parties as hereby irrevocably appoints the Collateral Agent as its agent hereunder and under this Indenture the other Loan Documents and each of authorizes the Collateral Documents and Intercreditor Agreements Agent to take such actions on its behalf and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture the Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Person serving as Collateral Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Collateral DocumentsAgent, and Wilmington Trustsuch Person and its Affiliates may accept deposits from, National Association agrees lend money to act and generally engage in any kind of business with the Loan Parties or any Subsidiary of a Loan Party or other Affiliate thereof as such. The provisions of this Section 13.03 are solely for the benefit of if it were not the Collateral Agent and neither hereunder. The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Trustee nor any Loan Documents. Without limiting the generality of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by foregoing, (a) the Collateral Agent in accordance with the provisions shall not be subject to any fiduciary or other implied duties, regardless of this Indenture, the Intercreditor Agreement whether a Default has occurred and the Collateral Documents, and the exercise by is continuing; (b) the Collateral Agent of shall not have any rights duty to take any discretionary action or remedies exercise any discretionary powers, except as expressly set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or Agreement; and (c) except as expressly set forth in the Collateral Loan Documents, the Collateral Agent shall not have any duties duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or responsibilities except those expressly set forth in this Indenture, any of the Subsidiaries that is communicated to or obtained by the Person serving as the Collateral Documents to which it is party and Agent or any of its Affiliates in the Intercreditor Agreementsany capacity. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct misconduct. The Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (as determined by a court i) any statement, warranty or representation made in or in connection with any Loan Document; (ii) the contents of competent jurisdiction any certificate, report or other document delivered hereunder or in a finalconnection with any Loan Document; (iii) the performance or observance of any of the covenants, non-appealable order)agreements or other terms or conditions set forth in any Loan Document; (iv) the adequacy, accuracy or completeness of any information (whether oral or written) set forth or in connection with any Loan Document; (v) the legality, validity, enforceability, effectiveness, adequacy or genuineness of any Loan Document or any other agreement, instrument or document; (vi) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral; or (vii) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent. The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any representation, notice, request, certificate, consent, statement, instrument, document or other writing or communication reasonably believed by it to be genuine genuine, correct and to have been authorized, signed or sent by the proper person. The Collateral Agent may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereonPerson. The Collateral Agent may consult with legal counsel (who may be counsel for the TrusteeBorrowers), independent accountants and other experts reasonably selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) . 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 in its reasonable discretion. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Collateral Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Collateral Agent. Subject to the provisions appointment and acceptance of the Intercreditor Agreements and the a successor Collateral DocumentsAgent as provided in this paragraph, the Trustee and the Collateral Agent are authorized may resign at any time by notifying the Lenders, the Administrative Agent, the Issuing Banks and empowered the Borrower Representative. Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower Representative (such consent not to receive be unreasonably withheld or delayed) in the absence of continuing Event of Default, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and the Borrower Representative and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Lender Parties, appoint a successor Collateral Agent which shall be a commercial bank or an Affiliate of any such commercial bank, in either case acceptable to the Borrower Representative in the absence of a continuing Event of Default (such acceptance not to be unreasonably withheld or delayed). Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges, obligations and duties of the retiring (or retired) Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and successor Collateral Agent. After any Collateral Agent’s resignation hereunder, the provisions of this Article, Sections 2.18(c) and 9.03 shall continue in effect for the benefit of the Holders such retiring Collateral Agent, its sub agents and their respective Related Parties in respect of any funds collected actions taken or distributed under the omitted to be taken by any of them while it was acting as Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Agent. Each Holder and other Secured Lender Party hereby agrees that (Aa) it will be bound has requested a copy of each Report prepared by and will take no actions contrary to the provisions or on behalf of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and Agent; (Cb) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary makes no representation or other implied dutieswarranty, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action express or exercise any discretionary powersimplied, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer completeness or accuracy of any Report or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent information contained therein or any of its Affiliates inaccuracy or omission contained in any capacity;
or relating to a Report and (ivii) shall not be liable for any action taken information contained in any Report; (c) the Reports are not comprehensive audits or not taken by it (A) with examinations, and that any Person performing any field examination will inspect only specific information regarding the consent or at Loan Parties and will rely significantly upon the request Loan Parties’ books and records, as well as on representations of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless Loan Parties’ personnel and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute undertakes no obligation to update, correct or supplement the Reports; and deliver (d) it will not share the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental theretoReport with any Loan Party or any other Person, and act will otherwise keep all Reports confidential in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this IndentureSection 9.12, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent otherwise permitted pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoingAgreement.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 2 contracts
Samples: Credit Agreement (Pilgrims Pride Corp), Credit Agreement (Pilgrims Pride Corp)
Collateral Agent. (a) The Issuer Each Investor hereby irrevocably appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture as its agent and each of authorizes the Collateral Documents and Intercreditor Agreements Agent to take such actions on its behalf and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture hereof, together with such actions and the Collateral Documents, and Wilmington Trust, National Association agrees to act powers as suchare reasonably incidental thereto. The provisions of this Section 13.03 are solely for the benefit of Person serving as the Collateral Agent and neither the Trustee nor any of the Holders hereunder shall have the same rights and powers in its capacity as an Investor as any rights other investor and may exercise the same as a third party beneficiary though it were not the Collateral Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any of the provisions contained herein. Each Holder agrees that any action taken by Subsidiary or other Affiliate thereof as if it were not the Collateral Agent in accordance with hereunder. The Collateral Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the provisions generality of this Indenturethe foregoing, the Intercreditor Agreement and the Collateral Documents, and the exercise by (i) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing, (ii) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights or remedies and powers expressly contemplated by this Agreement, and (iii) except as expressly set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documentsherein, the Collateral Agent shall not have any duties duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or responsibilities except those expressly set forth any of the Subsidiaries that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreementsany capacity. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct misconduct. The Collateral Agent shall be deemed not to have knowledge of any Event of Default unless and until written notice thereof is given to the Collateral Agent by the Company or an Investor (as determined by a court and, promptly after its receipt of competent jurisdiction any such notice, it shall give each Investor and the Company notice thereof), and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (a) any statement, warranty or representation made in a finalor in connection with any Secured Transaction Document, non-appealable order)(b) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (c) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein, (d) the validity, enforceability, effectiveness or genuineness thereof or any other agreement, instrument or other document or (e) the satisfaction of any condition set forth in herein, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent. 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 personPerson. The Collateral Agent also may also rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper personPerson, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the TrusteeGrantors), 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.
(b) . 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, provided that no such delegation shall serve as a release of the Collateral Agent or waiver by the Company of any rights hereunder. The Collateral Agent and any such sub agent may perform any and all its duties and exercise its rights and powers through their respective affiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such sub agent and to the affiliates of the Collateral Agent and any such sub agent, and shall apply to their respective activities acting for the Collateral Agent. Subject to the provisions appointment and acceptance of the Intercreditor Agreements and the a successor Collateral DocumentsAgent as provided in this paragraph, the Trustee and the Collateral Agent are authorized may resign at any time by notifying the Investors and empowered the Company. Upon any such resignation, the Investors shall have the right to receive appoint a successor. If no successor shall have been so appointed by the Investors and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Investors, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York, or an affiliate of any such bank. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. After the Collateral Agent’s resignation hereunder, the provisions of this Article shall continue in effect for the benefit of the Holders any funds collected or distributed under the such retiring Collateral Documents Agent, its sub agents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions their respective affiliates in respect of any such intercreditor agreement actions taken or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall omitted to be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking taken by any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the them while it was acting as Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties. Each Investor acknowledges that it has, regardless of whether an Event of Default has occurred independently and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as without reliance upon the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by other Investor and based on such documents and information as it (A) with the consent or at the request of the Trusteehas deemed appropriate, (B) in the absence of made its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not credit analysis and decision to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire enter into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Transaction Documents. The Holders may only act by written instruction to the TrusteeEach Investor also acknowledges that it will, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, independently and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which reliance upon the Collateral Agent or Trustee is a party any other Investor and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or to prevent not taking action under or based upon any impairment of Collateral by Secured Transaction Document, any acts that may be unlawful related agreement or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.document furnished thereunder
Appears in 2 contracts
Samples: Guaranty and Security Agreement (Vyyo Inc), Guaranty and Security Agreement (Vyyo Inc)
Collateral Agent. (a) The Issuer hereby appoints Wilmington TrustBank of America, National Association, N.A. to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Security Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Security Documents, and Wilmington TrustBank of America, National Association N.A. agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Security Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Security Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Security Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Security Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Security Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Security Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct (it being understood that any determination that the Collateral Agent’s actions constituted gross negligence or willful misconduct must be determined by a court of competent jurisdiction in a final, non-appealable order) or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Security Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Security Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Security Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Security Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Security Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Trustee and the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Security Documents or any lien and/or any filing, or recording or otherwise creatingcreaing, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the SecuritiesNotes, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Security Document, each Holder, by its acceptance of the SecuritiesNotes, agrees that the Collateral Agent shall execute and deliver the Collateral Security Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Security Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) 1. by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Note Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) 2. payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Security Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Security Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Security Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second First Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 2 contracts
Samples: Indenture (Qwest Corp), Indenture (Qwest Corp)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf Collateral Agent may be delegated any one or more of the Secured Parties as duties or rights of the Collateral Agent Trustee hereunder or under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, or the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor AgreementsAgreement. The Collateral Agent shall not be a Person who would be eligible to act as Trustee under this Indenture. The Collateral Agent shall have the rights and duties as may be specified in an agreement between the Trustee and the Collateral Agent. By its acceptance of Securities, each Holder hereby appoints U.S. Bank National Association as the initial Collateral Agent. Neither the Collateral Agent nor any of its officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action taken whatsoever with regard to the Collateral or not taken by it any part thereof. The powers conferred on the Collateral Agent hereunder are solely to protect the Collateral Agent’s interest in the absence Collateral and shall not impose any duty upon the Collateral Agent to exercise any such powers. The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act under this Indenture, except for its own gross negligence or willful misconduct (misconduct, as determined by a court of competent jurisdiction in a final, final and non-appealable orderorder or decision. Neither the Trustee nor the Collateral Agent makes any representation as to the value, sufficiency or condition of the Collateral or any part thereof, as to the title of the Company or Guarantor to the Collateral, as to the security afforded by this Indenture or any Collateral Document or, as to the validity, execution, enforceability, legality or sufficiency of this Indenture or any Collateral Document (whether now existing of hereafter entered into), and the Collateral Agent and Trustee shall incur no liability or responsibility in respect of any such matters. The Collateral Agent shall not be entitled responsible for insuring the Collateral, for the payment of taxes, charges, assessments or liens upon the Collateral or otherwise as to rely uponthe maintenance of the Collateral, 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 except as provided in the proper personimmediately following sentence when the Collateral Agent has possession of the Collateral. The Collateral Agent and Trustee shall have no duty to the Company or to the Holders as to any Collateral in its possession or in the possession of someone under its control or in the possession or control of any agent or nominee of the Collateral Agent or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto, except the duty to accord such of the Collateral as may also rely upon any statement made be in its possession substantially the same care as it accords its own assets and the duty to it orally or account for monies received by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereonit. The Collateral Agent may consult and Trustee shall not be responsible for any loss suffered with legal counsel (who may respect to any investment permitted to be counsel for the Trustee), independent accountants and other experts selected by it, made under this Indenture and shall not be responsible for the consequences of any oversight or error of judgment whatsoever, except that the Collateral Agent may be liable for any action taken losses due to its willful misconduct or not taken by it in accordance with the advice of any such counsel, accountants or expertsgross negligence.
(b) Subject to the provisions By its acceptance of the Intercreditor Agreements Securities, each Holder authorizes and the Collateral Documents, directs each of the Trustee and the Collateral Agent are authorized (1) to enter into and empowered perform the Collateral Documents and the Intercreditor Agreement, (2) to receive for the benefit of bind the Holders any funds collected or distributed on the terms as set forth therein and (3) to perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements to which Agreement and agree that in such performance the Trustee and Collateral Agent or Trustee is a party shall have all of the protections, benefits and immunities afforded to make further distributions of such funds to Holders according to the provisions of them in this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions A resignation or removal of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms and appointment of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the a successor Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in will become effective only upon the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the successor Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all acceptance of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, appointment as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary provided in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnificationSection 17.08(c).
(i) The Collateral Agent may resign in writing at any time and be discharged from the trust hereby created by so notifying the Company. The Holders of a majority in aggregate principal amount of the then outstanding Securities may remove the Collateral Agent by so notifying the Trustee and the Company in writing. The Company may remove the Collateral Agent if: (i) the Collateral Agent fails to be eligible to act as such pursuant to Section 17.08(a) hereof; (ii) the Collateral Agent is authorized and empowered adjudged a bankrupt or an insolvent or an order for relief is entered with respect to appoint one the Collateral Agent under the Bankruptcy Code; (iii) a custodian or more co-public officer takes charge of the Collateral Agents Agent or its property; or (v) the Collateral Agent becomes incapable of acting as it deems necessary or appropriatea collateral agent.
(jii) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct If the Collateral Agent resigns or is removed or if a vacancy exists in the office of Collateral Agent for any reason, the Company will promptly appoint a successor Collateral Agent. Within one year after the successor Collateral Agent takes office, the Holders of a majority in aggregate principal amount of the then outstanding Securities may appoint a successor Collateral to institute replace the successor Collateral Agent appointed by the Company.
(iii) If a successor Collateral Agent does not take office within 30 days after the retiring Collateral Agent resigns or is removed, (i) the retiring Collateral Agent’s resignation shall nonetheless become effective and maintain, such suits and proceedings as it may deem expedient to protect the retiring Collateral Agent shall have no further duties or enforce the Liens securing the Second Lien Obligations obligations under this Indenture or the Collateral Documents other than to which maintain the Collateral then in its possession until a successor Collateral Agent shall have been appointed and (ii) the Company, or the holders of at least 10% in aggregate principal amount of the then outstanding Securities may petition any court of competent jurisdiction for the appointment of a successor Collateral Agent.
(iv) If the Collateral Agent, after written request by any Holder who has been a Holder for at least six months, fails to be eligible to act as a Collateral Agent pursuant to Section 17.08(a) hereof, such Holder may petition any court of competent jurisdiction for the removal of the Collateral Agent and the appointment of a successor Collateral Agent.
(v) A successor Collateral Agent shall deliver a written acceptance of its appointment to the retiring Collateral Agent and to the Company. Thereupon, the resignation or Trustee is a party or to prevent any impairment removal of the retiring Collateral by any acts that may be unlawful or in violation Agent will become effective, and the successor Collateral Agent will have all the rights, powers and duties of the Collateral Documents or Agent under this Indenture. The successor Collateral Agent shall mail a notice of its succession to Holders. The retiring Collateral Agent will promptly transfer all property held by it as Collateral Agent to the successor Trustee and execute and deliver any Supplemental Indentures, modifications of the Intercreditor Agreements Agreement, Collateral Documents and other documents as are necessary to which the Collateral Agent or Trustee is a party or this Indenture, and evidence such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agentsuccession.
Appears in 2 contracts
Samples: Indenture (Guardian II Acquisition CORP), Indenture (Oscient Pharmaceuticals Corp)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, Company has appointed U.S. Bank National Association, Association to act on behalf of the Secured Parties serve as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under of the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this IndentureNotes.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(ib) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents collateral agents as it deems necessary or appropriate.
(jc) Subject The Collateral Agent (directly or through co-trustees, agents or sub-agents) will hold, and will be entitled to enforce, all Liens on the Collateral.
(d) The Collateral Agent will be subject to such directions as may be given it by the Trustee from time to time as required or permitted by this Indenture. Except as directed by the Trustee and as required or permitted by this Indenture, the Intercreditor AgreementsAgreement or as directed by the Holders with the requisite consent of such Holders, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent will not be obligated to:
(1) act upon directions purported to institute and maintainbe delivered to it by any other Person;
(2) foreclose upon or otherwise enforce any Lien; or
(3) take any other action whatsoever with regard to any or all of the Collateral Documents, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations created thereby or the Collateral Documents Collateral. The Company shall do or cause to which be done all such acts and things as may be necessary or proper, or as may be required by the provisions of the Intercreditor Agreement and the Noteholder Documents, to assure and confirm to the Trustee and the Collateral Agent the security interest in the Collateral contemplated hereby, by the Intercreditor Agreement, the Noteholder Documents or Trustee is a party or any part thereof, as from time to prevent any impairment time constituted, so as to render the same available for the security and benefit of Collateral by any acts that may be unlawful or in violation this Indenture and of the Guarantees secured thereby, according to the intent and purposes herein and therein expressed.
(e) The Collateral Documents or Agent will be accountable only for amounts that it actually receives as a result of the Intercreditor Agreements to which enforcement of Liens created by the Collateral Agent or Trustee is a party or this IndentureDocuments.
(f) In acting as Collateral Agent, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests rely upon and the interests enforce each and all of the Holders rights, powers, protections, immunities, indemnities and benefits of the Trustee under Article 7 mutatis mutandis, and, in the Collateralconnection therewith, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial references to the interests of Holders, Trustee shall be deemed to include the Collateral Agent and references to this Indenture shall be deemed to include the Collateral Documents and references to negligence with respect to the Trustee or will be deemed to be gross negligence with respect to the Collateral Agent.
(g) Each successor Trustee will become the successor Collateral Agent as and when the successor Trustee becomes the Trustee.
Appears in 2 contracts
Samples: Indenture (Vector Group LTD), Indenture (Vector Group LTD)
Collateral Agent. (a) The Issuer Secured Party hereby irrevocably appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture as its agent and each of authorizes the Collateral Documents and Intercreditor Agreements Agent to take such actions on its behalf and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture Agreement, together with such actions and powers as are reasonably incidental thereto. The Secured Party agrees as set forth in Article VIII of the Credit Agreement with respect to the matters specified therein relating to the Collateral DocumentsAgent and its duties under this Agreement (as if the same were set forth in this Agreement). Notwithstanding the foregoing (including as set forth in Article VIII of the Credit Agreement), the Secured Party acknowledges and Wilmington Trust, National Association agrees that (i) it is assigning all of its rights hereunder and under the Loan Proceeds Note under the Term Loan Collateral Agreement to act as such. The provisions of this Section 13.03 are solely the Collateral Agent for the benefit of the Secured Parties (as defined in the Term Loan Collateral Agent and neither Agreement) under the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Term Loan Collateral Agent in accordance with the provisions of this IndentureAgreement, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, (ii) the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive act hereunder for the benefit of the Holders any funds collected or distributed Secured Parties (as defined in the Term Loan Collateral Agreement) under the Term Loan Collateral Documents and Intercreditor Agreements to which Agreement, (iii) the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any duties or obligations, including fiduciary or other implied duties, regardless of whether an Event of a Default has occurred and is continuing;
, (iiiv) 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 by this Agreement, (v) the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, not have any duty to disclose, and shall not be liable for the failure to disclose, to the Secured Party any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as LPN Borrower and (vi) the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with is undertaking the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent obligations hereunder solely for the benefit of the Secured Parties pursuant to (as defined in the Term Loan Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(dAgreement) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Term Loan Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 2 contracts
Samples: Loan Proceeds Note (Level 3 Communications Inc), Loan Proceeds Note (Level 3 Communications Inc)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Indenture, the Collateral Documents and the Intercreditor Agreements and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture Indenture, the Collateral Documents and the Collateral DocumentsIntercreditor Agreements, and Wilmington Trustconsents and agrees to the terms of the Intercreditor Agreements and each Collateral Document, National Association as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as suchsuch on the express conditions contained in this Section 12.9. The provisions of this Section 13.03 12.9 are solely for the benefit of the Collateral Agent and neither none of the Trustee Trustee, any of the Holders nor any of the Holders Grantors shall have any rights as a third party beneficiary of any of the provisions contained hereinherein other than as expressly provided in Section 12.4. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions provision of this Indenture, the Intercreditor Agreement Agreements and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or Indenture, the Collateral DocumentsDocuments and the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and or otherwise exist against the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor AgreementAgent. Without limiting the generality of the foregoing and subject sentence, the use of the term “agent” in this Indenture with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom, and is continuing;intended to create or reflect only an administrative relationship between independent contracting parties.
(iib) shall not have The Collateral Agent may perform any duty to take any discretionary action or exercise any discretionary powersof its duties under this Indenture, except discretionary rights and powers expressly contemplated by the Collateral Documents or the Intercreditor Agreement that Agreements by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the Collateral Agent is required respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates, (a “Related Person”) and shall be entitled to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty advice of counsel concerning all matters pertaining to disclosesuch duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be liable responsible for the failure to disclosenegligence or willful misconduct of any receiver, any information relating to the Issuer agent, employee, attorney-in-fact or any Related Person that it selects as long as such selection was made in good faith.
(c) None of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
respective Related Persons shall (ivi) shall not be liable for any action taken or not omitted to be taken by it any of them under or in connection with this Indenture or the transactions contemplated hereby (A) with the consent or at the request of the Trustee, (B) in the absence of except for its own gross negligence or willful misconduct misconduct) or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in under or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein Document or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, Intercreditor Agreements or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, transactions contemplated thereby (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds its own gross negligence or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenturewillful misconduct), or (ii) payments from the Collateral Agent be responsible in excess of the amount required any manner to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to for any recital, statement, representation, warranty, covenant or agreement made by the Issuer, the Co-Issuer or any other Grantor or Affiliate of the foregoing.
(g) Notwithstanding anything to the contrary any Grantor, or any Officer or Related Person thereof, contained in this Indenture Indenture, or any Collateral Documentother Notes Documents, neither or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent nor the Trustee shall be responsible forunder or in connection with, and neither makes any representation regardingthis Indenture, the validity, effectiveness or priority of any of the Collateral Documents or the security interests Intercreditor Agreements, or Liens intended to be created thereby.
(h) The benefitsthe validity, protections and indemnities of the Trustee hereundereffectiveness, as applicable genuineness, enforceability or sufficiency of this Indenture shall apply mutatis mutandis to Indenture, the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one Documents or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered or for any failure of any Grantor or any other party to institute and maintainthis Indenture, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee is a party or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) 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 Issuers or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, judgment, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents or the Intercreditor Agreements unless it shall first receive such suits and proceedings as advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders shall in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may all cases be unconstitutional or otherwise invalid if the enforcement offully protected in acting, or compliance within refraining from acting, such enactmentunder this Indenture, rule the Collateral Documents or order would impair the security interest hereunder Intercreditor Agreements in accordance with a request, direction, instruction or be prejudicial to the interests consent of Holders, the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e) The Collateral AgentAgent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Trust Officer of the Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 12.9).
Appears in 2 contracts
Samples: Indenture (Restaurant Brands International Inc.), Indenture (Restaurant Brands International Limited Partnership)
Collateral Agent. (a) The Issuer hereby appoints Wilmington TrustU.S. Bank National Association shall initially act as Collateral Agent and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements, National Association, to act on behalf of the Secured Parties as neither the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders its officers, directors, employees or agents shall have any rights as a third party beneficiary of be liable for failure to demand, collect or realize upon any of the provisions contained herein. Each Holder agrees that Notes Collateral or for any action taken by the Collateral Agent delay in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent doing so or shall be under any obligation to sell or otherwise dispose of any rights Notes Collateral upon the request of any other Person or remedies set forth herein and therein shall be authorized and binding upon all Holdersto take any other action whatsoever with regard to the Notes Collateral or any part thereof. Notwithstanding any provision to the contrary contained elsewhere in this Indenture Indenture, the Intercreditor Agreements or the Collateral Security Documents, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and in the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Security Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documentsparty, (B) agrees that the Liens on the Collateral securing the Obligations nor shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized have or be deemed to take have any trust or refrain from taking any actions in accordance other fiduciary relationship with the terms of an Trustee, any Holder, the Issuer or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Intercreditor AgreementAgreements or the Security Documents or shall otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” or “Agent” in this Indenture, the Intercreditor Agreements and subject the Security Documents with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom and is continuing;
(ii) shall not have any duty intended to take any discretionary action create or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of reflect only an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Documentadministrative relationship between independent contracting parties. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by accountable only for amounts that it actually receives as a Responsible Officer result of the exercise of such powers, and neither the Collateral Agent;
(v) Agent nor any of its officers, directors, employees or agents shall not be responsible for any act or have any duty failure to ascertain act hereunder, except for its own willful misconduct or inquire gross negligence (as determined by a final, non-appealable order of a court of competent jurisdiction).
(b) The Collateral Agent is authorized and directed to (i) enter into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Security Documents, (Eii) enter into the value or Intercreditor Agreements, (iii) bind the sufficiency of any Collateral, or (F) Holders on the satisfaction of any condition terms as set forth in the Security Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Security Documents and the Intercreditor Agreements.
(c) If the Issuer or any Collateral Document, other than to confirm receipt Guarantors Incur any obligations in respect of items expressly required to be delivered any First Priority Lien Obligations at any time when no intercreditor agreement with respect thereto is in effect or at any time when Indebtedness constituting First Priority Lien Obligations entitled to the Collateral Agent; and
(vi) benefit of an existing intercreditor agreement is concurrently retired, the Issuer shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted deliver to the Collateral Agent an Officers’ Certificate so stating and requesting the Collateral Agent to enter into an Intercreditor Agreement in favor of a designated agent or representative for the benefit holders of the Secured Parties pursuant to First Priority Lien Obligations so Incurred, and the Trustee and the Collateral Documents or any lien and/or any filingAgent shall (and are hereby authorized and directed to) enter into such Intercreditor Agreement, or recording or otherwise creating, perfecting, continuing or maintaining any lien or bind the perfection thereof. By accepting Holders on the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph terms set forth therein and shall be bound by those agreements to the fullest extent permitted by lawperform and observe their obligations thereunder.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder act pursuant to so hold, and shall be entitled to enforce on behalf the instructions of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times and the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture Security Documents and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to Notes Collateral. For the Trustee or any avoidance of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretodoubt, the Collateral Agent shall have no discretion under this Indenture, the Intercreditor Agreements or the Security Documents and shall not be required to make or give any determination, consent, approval, request or direction without the written direction of the requisite Holders or the Trustee, as applicable. After the occurrence of an Event of Default, the Trustee may direct the Collateral Agent in connection with any action required or permitted by this Indenture, the Security Documents or the Intercreditor Agreements.
(e) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee, a Holder or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default”. The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee or the Holders of a majority in aggregate principal amount of the Securities subject to this Article 11.
(f) No provision of this Indenture or any Security Document shall require the Collateral Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Holders (or the Trustee in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it. Notwithstanding anything to the contrary contained in this Indenture, the Intercreditor Agreements or the Security Documents, in the event the Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Notes Collateral, the Collateral Agent shall not be required to commence any such action, exercise any remedy, inspect or conduct any studies of any property or take any such other duty action if the Collateral Agent has determined that the Collateral Agent may incur personal liability as a result of the presence at, or liability whatsoever release on or from, the Notes Collateral or such property of any hazardous substances unless the Collateral Agent has received security or indemnity from the Holders in an amount and in a form all satisfactory to the Collateral Agent in its sole discretion, protecting the Collateral Agent from all such liability. The Collateral Agent shall at any time be entitled to cease taking any action described in this Section 11.09(f) if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient.
(g) The Collateral Agent shall not be responsible in any manner to any of the Trustee or any Holder for the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents or the Intercreditor Agreements or for any failure of the Issuer, any Guarantor or any other party to this Indenture, the Security Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. The Collateral Agent shall not be under any obligation to the Trustee or any Holder to ascertain or to inquire as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture observance or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority performance of any of the Collateral agreements contained in, or conditions of, this Indenture, the Security Documents or the security interests Intercreditor Agreements or Liens intended to be created therebyinspect the properties, books or records of the Issuer or the Guarantors.
(h) The benefitsparties hereto and the Holders hereby agree and acknowledge that the Collateral Agent shall not assume, protections be responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and indemnities unforeseeable), judgments, expenses and costs (including any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any environmental law as a result of this Indenture, the Intercreditor Agreements or the Security Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that, in the exercise of its rights under this Indenture, the Intercreditor Agreements and the Security Documents, the Collateral Agent may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Agent in the Notes Collateral and that any such actions taken by the Collateral Agent shall not be construed as or otherwise constitute any participation in the management of such Notes Collateral.
(i) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by two Officers pursuant to this Section 11.09(i) (a “Security Document Order”), the Collateral Agent is hereby authorized to execute and enter into, and shall execute and enter into, without the further consent of any Holder or the Trustee, any Security Document to be executed after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is a Security Document Order referred to in, this Section 11.09(i) and (ii) instruct the Collateral Agent to execute and enter into such Security Document. Any such execution of a Security Document shall be at the direction and expense of the Issuer, upon delivery to the Collateral Agent of an Officers’ Certificate and an Opinion of Counsel stating that all conditions precedent to the execution and delivery of such Security Document have been satisfied. The Holders, by their acceptance of the Securities, hereby authorize and direct the Collateral Agent to execute such Security Documents.
(j) The Collateral Agent’s resignation or removal shall be governed by provisions equivalent to Section 7.07(a), Section 7.07(b), Section 7.07(c), Section 7.07(d) and Section 7.07(f).
(k) The Collateral Agent shall be entitled to all of the protections, immunities, indemnities, rights and privileges of the Trustee hereunderset forth in this Indenture, as applicable of this Indenture and all such protections, immunities, indemnities, rights and privileges shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one roles under any Security Document or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, whether or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agentnot expressly stated therein.
Appears in 2 contracts
Collateral Agent. (a) The Issuer hereby appoints Wilmington TrustCollateral Agent agrees that it will hold the security interests in the Collateral created under the Collateral Documents to which it is a party as contemplated by this Indenture, National Associationand any and all proceeds thereof, for the benefit of, the Secured Parties, without limiting the Collateral Agent’s rights, including under this Section 17.02, to act on behalf in preservation of the Secured Parties security interest in the Collateral. The Collateral Agent is authorized and empowered to appoint one or more co-collateral agents as it deems necessary or appropriate; provided, however, that no collateral agent hereunder shall be personally liable by reason of any act or omission of any other collateral agent hereunder.
(b) Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including not being responsible for payment of any Taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including the filing of any UCC financing statements, continuation statements, Mortgages or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Note Documents to which it is a party, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (1) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, the use of the term “agent” herein and in the other Note Documents with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law and instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties, (2) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers that are expressly contemplated by the Note Documents that, subject to the terms hereof, the Collateral Agent is required to exercise as directed in writing by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith to be necessary, under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties circumstances as are expressly delegated to provided in the Note Documents); provided that the Collateral Agent by shall not be required to take any action that, in its opinion or the terms opinion of this Indenture and the Collateral Documentsits counsel, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of may expose the Collateral Agent and neither the Trustee nor to liability or that is contrary to any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral DocumentsNote Document or Applicable Laws, and the exercise by the Collateral Agent of any rights or remedies (3) except as expressly set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision in the Note Documents to the contrary contained elsewhere in this Indenture or the Collateral Documentswhich it is a party, the Collateral Agent shall not have any duties duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Note Party or responsibilities except those expressly set forth any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreementsany capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders (or such other number or percentage of the Holders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in the Note Documents) or in the absence of its own gross negligence or willful misconduct (as determined by the final and non-appealable judgment of a court of competent jurisdiction jurisdiction, in connection with its duties expressly set forth herein. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof (stating that it is a final“notice of default” and describing such Default or Event of Default) is given to a Responsible Officer of the Collateral Agent by the Company or any Holder. The Collateral Agent will be subject to such directions as may be given to it by the Trustee, non-appealable orderor the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). The Collateral Agent will be subject to such directions as may be given to it by the Trustee or the Administrative Determination Holder(s), and prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, from time to time (as required or permitted by this Indenture). Except as directed by the Administrative Determination Holder(s), prior to the Braidwell Disposition Date, the Braidwell Holders, and prior to the Deerfield Disposition Date, the Deerfield Holders, as applicable, as required or permitted by this Indenture and any other representatives, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon directions purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) except as expressly provided in Section 17.03, to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(e) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that any references in such Article 7 to “Trustee” shall be references to “Collateral Agent” and any references to “negligence” shall be references to “gross negligence”.
(f) The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed signed, sent or sent otherwise authenticated by the proper personPerson (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the signatory, sender or authenticator thereof). The Collateral Agent also may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper personPerson (whether or not such Person in fact meets the requirements set forth in the Note Documents for being the maker thereof), and may act upon any such statement prior to receipt of written confirmation thereof and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee)counsel, independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(bg) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, At all times when the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, not itself the Collateral Agent:
(i) shall not be subject , the Company will deliver to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in which shall deliver to the absence Holders of its own gross negligence or willful misconduct or (C) in reliance on a certificate Notes, copies of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other all Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be Documents delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted Agent and copies of all documents delivered to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 2 contracts
Samples: Indenture (NanoString Technologies Inc), Indenture (NanoString Technologies Inc)
Collateral Agent. (a) The Issuer hereby appoints Wilmington TrustIn addition to the rights, National Associationprotections and indemnities set forth herein, to act on behalf of the Secured Parties as the Collateral Agent shall have all the rights and protections provided in the Security Documents.
(b) Each of the Holders by acceptance of the Securities hereby designates and appoints the Collateral Agent as its agent under this Indenture Indenture, the Security Documents and each of the Intercreditor Agreements and hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Security Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture, the Security Documents and the Intercreditor Agreements, and consents and agrees to the terms of the Intercreditor Agreements and each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms.
(c) Each of the Holders by acceptance of the Securities hereby directs the Trustee to so designate and appoint the Collateral Agent as its agent under this Indenture and the Security Documents and the Trustee hereby so designates and appoints the Collateral Documents, and Wilmington Trust, National Association Agent. The Collateral Agent agrees to act as suchsuch on the express conditions contained in this Section 11.03. The provisions of this Section 13.03 11.03 are solely for the benefit of the Collateral Agent and neither none of the Trustee Trustee, any of the Holders, the Issuer, nor any of the Holders Guarantors shall have any rights as a third party beneficiary of any of the provisions contained hereinherein other than as expressly provided hereunder. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions provision of this Indenture, the Intercreditor Agreement Agreements and the Collateral Security Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or Indenture, the Security Documents and the Intercreditor Agreements, the duties of the Collateral Documents, Agent shall be ministerial and administrative in nature and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth in this Indenture, the Collateral Documents to which it is party herein and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements Security Documents and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documentsparty, (B) agrees that the Liens on the Collateral securing the Obligations nor shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized have or be deemed to take have any trust or refrain from taking any actions in accordance other fiduciary relationship with the terms of an Trustee, any Holder, the Issuer or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents and the Intercreditor AgreementAgreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing and subject sentence, the use of the term “agent” in this Indenture with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties, regardless (or express) obligations arising under agency doctrine of whether an Event of Default has occurred and is continuing;any applicable law.
(iid) shall not have The Collateral Agent may perform any duty to take any discretionary action or exercise any discretionary powersof its duties under this Indenture, except discretionary rights and powers expressly contemplated by the Collateral Security Documents or the Intercreditor Agreement that the Collateral Agent is required Agreements by or through receivers, agents, employees, attorneys-in-fact or through its related Persons and shall be entitled to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty advice of counsel concerning all matters pertaining to disclosesuch duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be liable responsible for the failure to disclosegross negligence or willful misconduct of any receiver, any information relating to the Issuer agent, employee, attorney-in-fact or any related Person that it selects as long as such selection was made in good faith.
(e) None of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
respective related Persons shall (ivi) shall not be liable for any action taken or not omitted to be taken by it any of them under or in connection with this Indenture, the Securities or the transactions contemplated hereby (A) with the consent or at the request of the Trustee, (B) in the absence of except for its own gross negligence or willful misconduct misconduct) or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in under or in connection with any Collateral Document, (B) the contents of any certificate, report Security Documents or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein Intercreditor Agreements or the occurrence of any Event of Default, transactions contemplated thereby (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds its own gross negligence or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenturewillful misconduct), or (ii) payments from the Collateral Agent be responsible in excess any manner to any of the amount required Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any Guarantor or Affiliate of the Issuer or any Guarantor, or any officer or related Person thereof, contained in this Indenture, or any Security Documents or Intercreditor Agreements, or in any certificate, report, statement or other document referred to be paid to the Trustee pursuant to Article 5or provided for in, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied or received by the Collateral Agent pursuant under or in connection with, this Indenture, the Securities, the Security Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents or the Intercreditor Agreements, or for any failure of the Issuer or any Guarantor or any other party to this Indenture, the Security Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective related Persons shall be under any obligation to the terms Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture and Indenture, the Securities, the Security Documents or the Intercreditor AgreementAgreements or to inspect the properties, books, or records of the Issuer, any Guarantor or any of the Issuer’s or Guarantors’ or Affiliates.
(f) The Collateral Agent shall have no obligation whatsoever be entitled to the Trustee or rely, and shall be fully protected in conclusively relying, upon any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared forwriting, protectedresolution, notice, consent, certificate, opinion, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or insured other communication, document or has conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been encumberedsigned, sent, or that made by the Collateral Agent’s Liens have been properly proper Person or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authoritiesPersons, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood upon advice and agreed that in respect statements of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
legal counsel (g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, counsel to the rights to reimbursement Issuer or any Guarantor), independent accountants and indemnification.
(i) other experts and advisors selected by the Collateral Agent. The Collateral Agent is authorized and empowered shall not be bound to appoint one make any investigation into the facts or more co-matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agents as it deems necessary Agent shall be fully justified in failing or appropriate.
(j) Subject refusing to take any action under this Indenture, the Securities, the Security Documents or the Intercreditor Agreements, unless it shall first be directed by the Trustee is authorized acting upon the direction of the Holders of a majority in aggregate principal amount of the Securities in accordance with the terms hereof and empowered under the Securities and, if it so requests, it shall first be indemnified to institute its reasonable satisfaction by the Holders against any and maintainall liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or direct in refraining from acting, under this or any other indenture, the Collateral Agent to institute and maintainSecurities, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Security Documents or the Intercreditor Agreements to which the Collateral Agent in accordance with a request, direction, instruction or Trustee is a party or this Indenture, and such suits and proceedings as consent of the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests Holders of a majority in aggregate principal amount of the Holders in then outstanding Securities and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Samples: Indenture (PQ Group Holdings Inc.)
Collateral Agent. (a) The Issuer Each Secured Party hereby appoints Wilmington TrustCipher Capital Partners LLC (the "Collateral Agent") as the Collateral Agent hereunder and each Secured Party authorizes the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are delegated to the Collateral Agent under such agreements and to exercise such powers^ are reasonably incidental thereto. Without limiting the foregoing, National Associationeach Secured Party he||^; authorizes the Collateral Agent to execute and deliver, and to perform its obligations under, each of the documents to which the Collateral Agent is a party relating to security for the obligations under the Notes, to exercise all rights, powers and remedies that the Collateral Agent may have under such Transaction Documents and, in the case of the Transaction Documents, to act as agent for the Secured Parties under such Transaction Documents.
(b) As to any matters not expressly provided for by this Agreement and the other document relating thereto (including enforcement or collection), the Collateral Agent shall not be required to exercise any discretion or 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 instructions of the Required Lenders, and such instructions shall be binding upon all Secured Parties; provided, however, that the Collateral Agent shall not be required to take any action that (i) the Collateral Agent in good faith believes exposes it to personal liability unless the Collateral Agent receives an indemnification satisfactory to it from the Secured Parties with respect to such action or (ii) is contrary to this Agreement or applicable law. The Collateral Agent agrees to give to each Secured Party prompt notice of (i) each notice given to it by the Company pursuant to the terms of this Agreement or the other Transaction Documents and (ii) the actions taken by the Collateral Agent on behalf of the Secured Party., If the Collateral Agent receives conflicting instructions from the Secured Parties it wilMolftte required to act until it receives instructions from the Secured Parties holding a majority o'Mie Notes (calculated in dollar amounts rather than noteholders).
(c) In performing its functions and duties hereunder and under the Transaction Documents and the other documents required to be executed or delivered in connection therewith, the Collateral Agent is acting solely on behalf of the Secured Parties and its duties are entirely administrative in nature. The Collateral Agent does not assume and shall not be deemed to have assumed any obligation other than as expressly set forth herein, in the Transaction Documents and any other documents required to be executed or delivered in connection therewith related hereto or any other relationship as the agent, fiduciary or trustee of or for any Secured Party or holder of any other obligation under this Agreement or the Notes. The Collateral Agent may perform any of its duties under any Transaction Document by or through its agents or employees.
(d) None of the Collateral Agent, any of its affiliates or any of their respective directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it, him, her or them under or in connection with this Agreement or the other Transaction Documents, except for its, his, her or their oifSiigloss negligence or willful misconduct.
(e) Each Secured Party acknowledges that it shall, independently and without reliance upon the Collateral Agent or any other Secured Party conduct its own independent investigation of the financial condition and affairs of the Company and its Subsidiaries in connection with the issuance of the Securities. Each Secured Party also acknowledges that it shall, independently and without reliance upon the Collateral Agent or any other Secured Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement and other Transaction Documents. For avoidance of doubt, each Secured Party represents that it has had no contact with the Collateral Agent; and acknowledges that the Collateral Agent has had no role in the negotiation or preparation of the Transaction Documents and was contacted after such negotiations and documents were finalized for the purpose of serving solely in the administrative role of Collateral Agent under this Agreement.
(f) Each Secured Party, severally but not jointly and on a pro rata basis, agrees to indemnify the Collateral Agent and each of its affiliates, and each of their respective directors, officers, employees, agents and advisors (to the extent not reimbursed by the Borrower), from any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses and disbursements (including fees, expenses ;and disbursements of financial and legal advisors) of any kind or nature whatsoever Iriatniiy'be imposed oh, incurred by, or asserted against, the Collateral Agent or any of its affiliates, directors, officers, employees, agents and advisors in any way relating to or arising out of this Agreement or the other Transaction Documents or any action taken or omitted by the Collateral Agent under this Indenture Agreement or the document related thereto; provided, however, that no Secured Party shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Collateral Agent's or such Affiliate's gross negligence or willful misconduct.
(g) The Collateral Agent may resign at any time by giving written notice thereof to the Secured Parties and each the Company. Upon any such resignation, the Secured Parties shall have the right to appoint a successor Collateral Agent. If no successor Collateral Agent shall have been so appointed by the Secured Parties, and shall have accepted such appointment, within 30 days after the retiring Collateral Agent's giving of notice of resignation, then the retiring Collateral Agent may, on behalf of the Secured Parties, appoint a successor Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties Agent, selected from among the Secured Parties. Upon the acceptance of any appointment as are expressly delegated to the Collateral Agent by a successor Collateral Agent, such successor Collateral Agent shall succeed to, and become vested with, all the terms rights, powers, privileges and duties of this Indenture the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations under this Agreement, the Transaction Documents andanyittnerdocuments required to be executed or delivered in connection therewith. Prior to any retiring Collateral Agent's resignation hereunder as Collateral Agent, the retiring Collateral Agent shall take such action as may be reasonably necessary to assign to the successor Collateral Agent its rights as Collateral Agent under the Transaction Documents. After such resignation, and Wilmington Trust, National Association agrees the retiring Collateral Agent shall continue to act as such. The provisions of this Section 13.03 are solely for have the benefit of the this Agreement as to any actions taken or omitted to be taken by it while it was Collateral Agent under this Agreement, the Transaction Documents and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. other documents required to be executed or delivered in connection therewith.
(h) Each Holder Secured Party agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, Agreement or of the Intercreditor Agreement and the Collateral Documentsother document relating thereto, and the exercise by the Collateral Agent or the Secured Parties of any rights or remedies the powers set forth herein and therein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all Holders. Notwithstanding any provision to of the contrary contained elsewhere Secured Parties.
(i) Each of the Secured PartiQfp^by directs, in this Indenture or accordance with the Collateral Documentsterms hereof, the Collateral Agent shall not have to release (or in the case of clause (ii) below, release or subordinate) any duties or responsibilities except those expressly set forth in this Indenture, Lien held by the Collateral Agent for the benefit of the Secured Parties against any of the following: (i) all of the Collateral upon payment and satisfaction in full of all obligations under the Notes and all other obligations under the Transaction Documents that the Collateral Agent has been notified in writing are then due and payable; (ii) any assets that are subject to which it a Lien permitted by Section 3.2); and (iii) any part of the Collateral sold or disposed of by the Company or any Subsidiary if such sale or disposition is party permitted by this Agreement and in the Intercreditor AgreementsNotes (or permitted pursuant to a waiver or consent of a transaction otherwise prohibited by this Agreement and the Notes). Each of the Secured Parties hereby directs the Collateral Agent to execute and deliver or file such termination and partial release statements and do such other things as are necessary to release Liens to be released pursuant to this Section 7.14 promptly upon the effectiveness of any such release.
(j) The contact information for the Collateral Agent is: Cipher Capital Partners LLC, c/x Xxxxxxx Xxxx Partners, 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxx. The fax number for Cipher Capital Partners is (000) 000-0000 and the E-mail address is xxxxx@xxxxxxxxxxxx.xxx. The telephone number for Cipher Capital Partners is (000) 000-0000.
(k) The Collateral Agent Agent:
(i) shall not be liable responsible in any manner for the i validity, correctness or sufficiency of any action taken document or not taken instrument ireceived by it or made available to it, in the absence of its own gross negligence or willful misconduct (capacity as determined by a court of competent jurisdiction in a final, non-appealable order). The Collateral Agent hereunder.
(ii) shall be entitled to rely uponact upon any written certificate, and shall not incur any liability for relying uponstatement, any notice, demand, request, certificate, consent, statement, instrument, document agreement or other writing believed by it instrument whatever, not only in reliance upon its due execution and the validity and effectiveness of its provisions, but also as to the accuracy and completeness of any information therein contained, which the Collateral Agent shall in good faith believe to be genuine and to have been signed or sent presented by any authorized person.
(iii) shall be entitled to request and receive from any party hereto such documents in addition to those provided for herein as the proper person. The Collateral Agent may also rely upon deem necessary to resolve any statement made questions of fact involveol||it'the\ administration of its duties hereunder.
(iv) may, at the expense of the remaining parties, consult independent counsel of its choice in respect to it orally any question relating to its duties or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by itresponsibilities under this Agreement, and shall not be liable for any action taken or not taken by it omitted in accordance with the good faith on advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have under no obligation to advance any duty to ascertain or inquire into (A) any statement, warranty or representation made in or monetary sum in connection with the maintenance or administration of this Agreement, to institute or defend any Collateral Documentaction, (B) the contents of any certificate, report suit or other document delivered thereunder or legal proceeding in connection therewithherewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or to take any other agreementaction likely to involve the Collateral Agent in expense, instrument or document, or the creation, perfection or priority of any Lien purported to be created unless first indemnified by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered remaining parties to the Collateral Agent; and's satisfaction.
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements any amendment to this Agreement or by any other such amendment or agreement unless the fullest extent permitted same shall have been executed by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(evii) If at any time or times shall have only such duties and responsibilities as are expressly set forth in this Agreement in the Trustee shall receive performance of its obligations hereunder.
(iviii) by payment, foreclosure, set-off or otherwise, any acknowledges specifically its obligations under section 6.2(b) above regarding pro rata distributions of the proceeds of any collection or sale of the Collateral, as well as any Collateral consisting of cash.
(ix) may, if it becomes uncertain concerning its rights and responsibilities with respect to its duties or any payments if it receives instructions with respect to the Obligations arising underCollateral that it believes to be in conflict with this Agreement or is advised that a dispute has arisen with respect to its duties under this Agreement, without liability, refrain from taking any action until it is directed otherwise in a writing signed by all of the Secured Parties or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the an order of a court of competent jurisdiction. The Collateral Agent pursuant is not obligated to the terms of this Indentureinstitute or defend any legal proceedings, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agentalthough it may, in kindits sole discretion and at the r^hiai^ihg parties' expense, institute or defend such proceedings l-fmcludihg proceedings seeking a declaratory judgment) and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreementjoin interested parties.
(fx) The Collateral Agent shall have no obligation whatsoever will be paid a fee of $3,000 for its agreement to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that serve as the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of . This fee is payable upon the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable execution of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnificationAgreement.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Collateral Agent. (a) The Issuer hereby appoints Wilmington TrustU.S. Bank National Association shall initially act as Collateral Agent and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Security Documents, National Association, to act on behalf of the Secured Parties as neither the Collateral Agent under this Indenture and each nor any of its officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral Documents and Intercreditor Agreements and or for any delay in doing so or shall be under any obligation to exercise such powers and perform such duties as are expressly delegated sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor or any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holderspart thereof. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Security Documents, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth in this Indenture, the Collateral Documents to which it is party Indenture and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Security Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documentsparty, (B) agrees that the Liens on the Collateral securing the Obligations nor shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized have or be deemed to take have any trust or refrain from taking any actions in accordance other fiduciary relationship with the terms of an Intercreditor AgreementTrustee, any Holder, the Issuer or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture or the Security Documents or shall otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” or “Agent” in this Indenture and subject the Security Documents with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom and is continuing;
(ii) shall not have any duty intended to take any discretionary action create or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of reflect only an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Documentadministrative relationship between independent contracting parties. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by accountable only for amounts that it actually receives as a Responsible Officer result of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents exercise of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental theretosuch powers, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee any of its officers, directors, employees or agents shall be responsible for, and neither makes for any representation regarding, the validity, effectiveness act or priority of any of the Collateral Documents or the security interests or Liens intended failure to be created thereby.
(h) The benefits, protections and indemnities of the Trustee act hereunder, except for its own willful misconduct or gross negligence (as applicable determined by a final, non-appealable order of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnificationa court of competent jurisdiction).
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Samples: Purchase Agreement (Vivus Inc)
Collateral Agent. (ai) The Issuer Delaware Trust Company, a Delaware corporation (“Delaware Trust”) is hereby appoints Wilmington appointed Collateral Agent under the Security Document and the Buyer hereby authorizes Delaware Trust, National Associationin such capacity, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by its agent in accordance with the terms of the Security Document and this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as suchAgreement. The provisions of this Section 13.03 4(d) are solely for the benefit of the Collateral Agent Buyer and neither the Trustee nor any of the Holders Company and its Affiliates shall not have any rights as a third party beneficiary of any of the provisions contained hereinthereof. Each Holder agrees that any action taken by In performing its functions and duties under the Security Document and this Agreement, the Collateral Agent shall act solely as an agent of the Buyer and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with the Company or any of its Affiliates. The Collateral Agent shall be obligated, and shall have the powers and rights, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of Collateral), solely in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral DocumentsSecurity Document. If any provision, and duty, obligation or right under the exercise by the Collateral Agent of Security Document is in conflict with any rights provision, duty, obligation or remedies set forth herein and therein right under this Agreement then this Agreement shall be authorized and binding upon all Holderscontrol. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the The Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth herein and in the Security Document and such powers as are incidental thereto.
(ii) The Buyer irrevocably authorizes the Collateral Agent to take such action on such Buyer’s behalf and to exercise such powers, rights and remedies hereunder as are specifically delegated or granted to the Collateral Agent by the terms of this IndentureAgreement and the Security Document, together with such powers, rights and remedies as are reasonably incidental thereto. The Collateral Agent shall have only those duties and responsibilities that are expressly specified herein and therein. The Collateral Agent may exercise such powers, rights and remedies and perform such duties by or through its agents or employees. Notwithstanding any other provisions hereof or of any provision of the Security Document, the Collateral Documents Agent shall not have or be deemed to have any fiduciary relationship with the Buyer or any other person or entity, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or the Security Document or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement or the Security Document 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.
(iii) The Collateral Agent may act in reliance upon any writing or instrument or signature which it is party it, in good faith, believes to be genuine, and may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument and may assume that any person or entity purporting to give any writing, notice, advice or instruction in connection with the Intercreditor Agreementsprovisions hereof has been duly authorized to do so. The Collateral Agent may consult with counsel and shall be entitled to act, and shall be fully protected in any action taken in good faith, in accordance with advice given by counsel. The Collateral Agent shall not be liable to the Company or any of its Affiliates, or the Buyer for any recitals or warranties herein or in the Security Document, nor for the effectiveness, enforceability, validity or due execution of the Security Document or any other agreement, document or instrument, nor to make any inquiry respecting the performance by any party of their respective obligations thereunder. Any such inquiry which may be made by the Collateral Agent shall not obligate it to make any further inquiry or to take any action.
(iv) The Collateral Agent shall not be required to take any action taken or not taken by which, in the Collateral Agent’s sole and absolute judgment, could involve it in expense or liability unless furnished with security and indemnity which it deems, in its sole and absolute discretion, to be satisfactory. In the absence event the Collateral Agent receives conflicting instructions hereunder or under any of the Security Document, the Collateral Agent shall be fully protected in refraining from acting until such conflict is resolved to the satisfaction of the Collateral Agent. Neither the Collateral Agent nor any of its own gross directors, officers, employees or agents shall be liable, except for the Collateral Agent’s bad faith, negligence or willful misconduct (as finally determined by a court of competent jurisdiction for any action taken or omitted under or in connection with this Agreement, the Security Document or any other instrument or document in connection herewith or therewith.
(v) The Collateral Agent may resign or be removed by the holders of the Company Notes (by an affirmative vote of the holders of at least 50% of the outstanding principal of the Company Notes) as Collateral Agent hereunder at any time upon at least thirty (30) days’ prior notice. If the Collateral Agent at any time shall resign, the holders of the Company Notes shall (by an affirmative vote of the holders of at least 50% of the outstanding principal of the Company Notes), within ten (10) days after such notice appoint a finalsuccessor Collateral Agent which shall thereupon become the Collateral Agent hereunder and under the Security Document. If no successor Collateral Agent shall have been so appointed, non-appealable order)and shall have accepted such appointment, within the above time frame the retiring Collateral Agent may appoint a successor. Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, such successor Collateral Agent shall be entitled to receive from the retiring Collateral Agent such documents of transfer and assignment as such successor Collateral Agent may reasonably request, and shall thereupon succeed to and become vested with all rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations under this Agreement. After the effective date of any retiring Collateral Agent’s resignation hereunder as collateral agent, the provisions of this section shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Collateral Agent under this Agreement.
(vi) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any default unless the Collateral Agent has received a copy of a notice thereof from the Buyer referring to this Agreement and describing such default. In the event that the Collateral Agent receives such a notice, the Collateral Agent shall promptly give notice thereof to the other holders of the Company Notes and to the Company. The Collateral Agent shall be entitled permitted to rely upon, take such action with respect to any default as provided in this Agreement 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or expertsSecurity Document.
(bvii) Subject to the provisions The Buyer, by its acceptance of the Intercreditor Agreements benefits hereof and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby Security Document, agrees that (A) it will be bound by and will take shall have no actions contrary right individually to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of realize upon any of the covenantsCollateral, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created it being understood and agreed by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to Buyer that all rights and remedies may be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to exercised solely by the Collateral Agent for the benefit of the Buyer in accordance with the provisions of this Agreement and the Security Document in the Collateral Agent’s sole and absolute discretion.
(viii) Upon any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to its creditors upon any dissolution or winding-up or total or partial liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings including, without limitation, all amounts received by the Collateral Agent on behalf of the Buyer, or received by the Buyer, shall be paid by the Company in accordance with its outstanding Secured Parties pursuant Obligations (as defined in the Security Document) to the Buyer in accordance with clause (xi) below. Any and all amounts referred to in this clause (viii) or any other amounts or proceeds of collateral received by the Buyer (x) shall be held in trust for the benefit of all of the holders of the Company Notes, (y) shall be immediately delivered by the Buyer to the Collateral Documents Agent in the amount and form received, and (z) shall be apportioned, paid over or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or delivered among the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions holders of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by lawCompany Notes in accordance with clause (xi) of this Agreement.
(dix) Subject to Except as provided by law, the provisions security interests in the Collateral shall be for the ratable benefit of the applicable Collateral Documentholders of the Company Notes, each Holdershall rank equally in priority, none being senior or subordinate to any other. The Buyer shall not contest the validity, perfection, priority or enforceability of the lien of any other holder of the Company Notes in the Collateral. The Buyer, by its acceptance of the Securitiesbenefits hereof, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever right individually to the Trustee or realize upon any of the Holders Collateral under this Agreement, the Security Document, pursuant to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protectedapplicable law, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documentsotherwise, it being understood and agreed by the Buyer that in respect of all rights and remedies under this Agreement, the CollateralSecurity Document, pursuant to applicable law, or any actotherwise, omission, or event related thereto, may be exercised solely by the Collateral Agent shall have no other duty or liability whatsoever to for the Trustee or any Holder as to any benefit of the foregoingBuyer in accordance with the provisions of this Agreement and the Security Document.
(gx) Notwithstanding anything Upon any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding-up or total or partial liquidation or reorganization of the contrary Company, whether voluntary or involuntary or in this Indenture bankruptcy, insolvency, receivership or any other proceedings (each such payment, distribution and/or amount is hereafter referred to as a “Collateral DocumentProceeds Amount”), neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created therebydisbursed in accordance with clause (xi) below.
(hxi) The benefits, protections Any and indemnities all Collateral Proceeds Amount and any other amounts or proceeds of Collateral received by the Buyer shall be held in trust for the benefit of all of the Trustee hereunderholders of the Company Notes, as applicable of this Indenture shall apply mutatis mutandis be immediately delivered by the Buyer to the Collateral Agent in its capacity as suchthe amount and form received, includingand, without limitation, subject to the rights to reimbursement and indemnification.
any of the Collateral Proceeds Amount or such other amounts or proceeds of Collateral of the holders of the other security interests in the Collateral referred to in clause (ix) The Collateral Agent is authorized and empowered above, shall be apportioned, paid over or delivered as follows: first, to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute for the payment or reimbursement of any expenses and maintainfees of, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which any other amount payable to, the Collateral Agent hereunder or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation under the Security Document, and next, among the holders of the Collateral Documents or Company Notes on a pro rata basis to each in accordance with the Intercreditor Agreements Company’s outstanding obligations to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests each of the Holders in holders of the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral AgentCompany Notes.
Appears in 1 contract
Samples: Securities Purchase Agreement (Applied Dna Sciences Inc)
Collateral Agent. (a) The Issuer hereby appoints Wilmington TrustNotwithstanding anything else to the contrary herein, National Associationwhenever reference is made in this Indenture or the Collateral Documents (including the Intercreditor Agreement or any other Acceptable Intercreditor Agreement) to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to act on behalf of the Secured Parties as be undertaken or to be (or not to be) suffered or omitted by the Collateral Agent under this Indenture and each or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to Agent, it is understood that in all cases the Collateral Agent shall be fully justified in failing or refusing to take any such action if it shall not have received written instruction, advice or concurrence from the Majority Holders (or Holders representing such number or percentage of outstanding aggregate principal of the Notes as shall be expressly provided for herein or in any other Collateral Document) in respect of such action and, if it so requests, it shall first be indemnified to its satisfaction against any and all liability and expense which may be incurred by the terms it by reason of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees taking or continuing to act as suchtake any such action. The provisions Collateral Agent shall have no liability for any failure or delay in taking any actions contemplated above as a result of this Section 13.03 are a failure or delay on the part of the Majority Holders or such Holders, as applicable, to provide such instruction, advice or concurrence. This provision is intended solely for the benefit of the Collateral Agent and neither its successors and permitted assigns and is not intended to and will not entitle the Trustee nor other parties hereto to any defense, claim or counterclaim, or confer any rights or benefits on any party hereto. Subject to the foregoing (and the other provisions of this Section 13.15) and the terms of the Holders shall have Collateral Documents and any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the other applicable provisions of this Indenture, the Intercreditor Agreement Collateral Agent shall take such action with respect to any Default or Event of Default as may be requested by the Majority Holders.
(b) The Collateral Agent may resign at any time by notice to the Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral DocumentsAgent. The Collateral Agent may be removed by the Co-Issuers at any time, and upon thirty days written notice to the exercise by Collateral Agent. If the Collateral Agent of any rights resigns or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in is removed under this Indenture, the Collateral Documents to which it Co-Issuers shall appoint a successor collateral agent. If no successor collateral agent is party appointed and in has accepted such appointment within 30 days after the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken gives notice of resignation or not taken by it in is removed, the absence retiring Collateral Agent may (at the expense of the Co-Issuers), at its own gross negligence option, appoint a successor Collateral Agent or willful misconduct (as determined by petition a court of competent jurisdiction in for the appointment of a finalsuccessor. Upon the acceptance of its appointment as successor collateral agent hereunder, non-appealable order). The such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Collateral Agent, and the term “Collateral Agent” shall mean such successor collateral agent, and the retiring or removed Collateral Agent’s appointment, powers and duties as the Collateral Agent shall be entitled to rely uponterminated. After the retiring Collateral Agent’s resignation or removal hereunder, 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
Section 13.15 (cand Section 8.06) Each Holder shall continue to inure to its benefit and other Secured Party hereby agrees that (A) the retiring or removed Collateral Agent shall not by reason of such resignation or removal be deemed to be released from liability as to any actions taken or omitted to be taken by it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and while it was the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture Trustee and each of the Holders by acceptance of the Securities hereby authorize the appointment of the Collateral Agent as the Trustee’s and the Holders’ Collateral Agent under the Security Documents and Intercreditor Agreements in its capacity as mortgagee and security trustee pursuant to the Collateral Rig Mortgages, and the Trustee and each of the Holders by acceptance of the Securities hereby irrevocably authorize the Collateral Agent to enter into the Security Documents and to take such action on their behalf under the provisions of the Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Security Documents, and Wilmington Trust, National Association agrees to act together with such powers as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holdersreasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or and the Security Documents, the duties of the Collateral DocumentsAgent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth in this Indenture, the Collateral Documents to which it is party herein and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Security Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documentsparty, (B) agrees that the Liens on the Collateral securing the Obligations nor shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized have or be deemed to take have any trust or refrain from taking any actions in accordance fiduciary relationship with the terms of an Intercreditor AgreementTrustee, any Holder, the Company, any Collateral Grantor or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing and subject sentence, the use of the term “agent” in this Indenture with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom, and is continuing;
intended to create or reflect only an administrative relationship between independent contracting parties. The Trustee is authorized and directed by the Holders and the Holders by acquiring the Securities are deemed to have authorized the Trustee, as applicable, to cause the Collateral Agent to enter into and perform its obligations under the Security Documents. The Collateral Agent is authorized and directed by the Trustee and the Holders and the Holders by acquiring the Securities are deemed to have authorized the Collateral Agent, to (i) enter into the Security Documents to which it is a party, (ii) shall not have any duty to take any discretionary action or bind the Trustee and the Holders on the terms as set forth in such Security Documents and (iii) perform and observe its obligations and exercise any discretionary powers, except discretionary its rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral under such Security Documents, have any duty to discloseincluding entering into amendments, supplements and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is other modifications permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee this Indenture or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Security Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Each Holder, by its acceptance of a Security, is deemed to have consented and agreed to the Securitiesterms of each Security Document, agrees that as originally in effect and as amended, restated, replaced, supplemented or modified from time to time in accordance with its terms or the terms of this Indenture. Each of the Holders by acquiring the Securities is hereby deemed to have directed the Trustee to appoint the Collateral Agent shall execute as its mortgagee and deliver security trustee to receive, hold, administer and enforce the Collateral Documents to which it is a party and all agreementsRig Mortgages covering the Collateral Rigs, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereofas contemplated under this Indenture. The Collateral Agent shall hold (directly not be deemed to have knowledge or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf notice of the Holders on the Collateral for their benefitoccurrence of any Default or Event of Default, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from unless the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments shall have received written notice from the Collateral Agent Trustee or unless a written notice of any event which is in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with fact such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied a Default is received by the Collateral Agent pursuant at the address specified in Section 14.01, and such notice references the Securities and this Indenture. The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the terms Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Securities (subject to this Indenture and the Intercreditor Agreement.
(f) Section 12.05). The Collateral Agent shall have no obligation and makes no representation whatsoever to the Trustee or any of the Holders as to assure the existence, genuineness, value or protection of the Collateral or the sufficiency of any Security Documents, or that the Collateral exists or is owned by any Issuer or Guarantor of the Collateral Grantors or is cared for, protected, protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any GuarantorCollateral Grantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, disclosure or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral other Security Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture . The grant of permissive rights or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis powers to the Collateral Agent shall not be construed to impose duties to act. For the avoidance of doubt, nothing herein shall require the Collateral Agent to file financing statements or continuation statements, to record any documents or instruments in any public office at any time or be responsible for perfection or maintaining the perfection of the security interests purported to be created by the Security Documents and such responsibility shall be solely that of the Company. Each of the Collateral Agent and the Trustee, each in its capacity as such, includingshall not be liable or responsible for the failure of the Company or any Collateral Grantor to maintain insurance on the Collateral, without limitationnor shall it be responsible for any loss due to the insufficiency of such insurance or by reason of the failure of any insurer to pay the full amount of any loss against which it may have insured to the Company or any Collateral Grantor, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor AgreementsTrustee, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or any other Person. The provisions of Article 7, mutatis mutandis, shall apply to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Samples: Indenture (Transocean Ltd.)
Collateral Agent. (a) The Issuer hereby appoints Wilmington TrustTrustee shall initially act as Collateral Agent and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreement, National Association, to act on behalf of the Secured Parties as neither the Collateral Agent under this Indenture and each nor any of its respective officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral Documents and Intercreditor Agreements and or for any delay in doing so or shall be under any obligation to exercise such powers and perform such duties as are expressly delegated sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor or any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order)part thereof. The Collateral Agent shall be entitled to rely uponaccountable only for amounts that it actually receives as a result of the exercise of such powers, 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 neither the proper person. The Collateral Agent may also rely upon nor any statement made to it orally of its officers, directors, employees or by telephone and believed by it to have been made by the proper person, and agents shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable responsible for any action taken act or not taken by it in accordance with the advice of any such counselfailure to act hereunder, accountants except for its own willful misconduct, gross negligence or expertsbad faith.
(b) Subject to the provisions of the Intercreditor Agreements and the The Trustee, as Collateral DocumentsAgent, the Trustee and the Collateral Agent are is authorized and empowered directed to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied dutiesenter into the Security Documents, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powersenter into the Intercreditor Agreement, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except bind the Holders on the terms as expressly set forth in the Collateral Documents, have any duty to disclose, Security Documents and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
Intercreditor Agreement and (iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of perform and observe its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor obligations under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture Security Documents and the Intercreditor Agreement.
(fc) The Collateral Agent shall have If the Issuers (i) Incur First-Priority Lien Obligations at any time when no obligation whatsoever intercreditor agreement is in effect or at any time when Indebtedness constituting First-Priority Lien Obligations entitled to the Trustee or any benefit of the Holders to assure that the Collateral exists or an existing Intercreditor Agreement is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authoritiesconcurrently retired, and powers granted or available (ii) delivers to the Collateral Agent pursuant an Officers’ Certificate so stating and requesting the Collateral Agent to this Indenture enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement in effect on the Acquisition Date) in favor of a designated agent or any Collateral Documents, it being understood and agreed that in respect representative for the holders of the Collateral, or any act, omission, or event related theretoFirst-Priority Lien Obligations so Incurred, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is hereby authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(jdirected to) Subject to the Intercreditor Agreementsenter into such intercreditor agreement, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of bind the Holders in on the Collateral, including power to institute terms set forth therein and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agentperform and observe its obligations thereunder.
Appears in 1 contract
Samples: Indenture (Borden Chemical Inc)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(jb) Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Collateral Agent shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent in good faith.
(c) The Collateral Agent shall not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Company to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. Subject to Section 11.02(b) of this Indenture, the Collateral Agent shall have no duty to ascertain or inquire as to the performance or observance of any of the terms of this Indenture, the Intercreditor AgreementsAgreement, the Collateral Agreements or any other Security Document by the Issuer, the Guarantors, the First Lien Agent or the Senior Lenders.
(d) The Collateral Agent will be subject to such directions as may be given it by the Trustee is authorized from time to time (as required or permitted by this Indenture); provided that in the event of conflict between directions received pursuant to the Security Documents or the Intercreditor Agreement and empowered directions received hereunder, the Collateral Agent will be subject to institute directions received pursuant to the Security Documents or the Intercreditor Agreement. Except as directed by the Trustee as required or permitted by this Indenture and maintainany other representatives or pursuant to the Security Documents, the Collateral Agent will not be obligated:
(1) to act upon directions purported to be delivered to it by any other Person;
(2) to foreclose upon or direct otherwise enforce any Second Priority Lien; or
(3) to take any other action whatsoever with regard to any or all of the Second Priority Liens, Security Documents or Collateral.
(e) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Second Priority Liens or Security Documents.
(f) In acting as Collateral Agent or Co-Collateral Agent, the Collateral Agent and each Co-Collateral Agent may rely upon and enforce and otherwise enjoys each and all of the rights, powers, immunities, indemnities and benefits of the Trustee under Article VII hereof.
(g) The Issuer, Guarantors and the holders of Notes agree that the Collateral Agent, whenever acting hereunder, under the Intercreditor Agreement or under any Security Document, shall be entitled to all the rights, privileges, protections, immunities, indemnities and benefits provided to the Collateral Agent hereunder and under the U.S. Collateral Agreement and any other Security Document. Furthermore, each holder of a Note, by accepting such Note, consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Collateral Agent to institute enter into and maintain, such suits perform the Intercreditor Agreement and proceedings as it may deem expedient to protect or enforce Security Documents in each of its capacities thereunder.
(h) If the Liens securing the Second Issuer (i) Incurs First Priority Lien Obligations at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting First Priority Lien Obligations entitled to the Collateral Documents benefit of an existing Intercreditor Agreement is concurrently retired, and (ii) delivers to which the Collateral Agent an Officer’s Certificate so stating and requesting the Collateral Agent, as applicable, to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement attached hereto as Exhibit E) in favor of a designated agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation representative for the holders of the Collateral Documents or the Intercreditor Agreements to which First Priority Lien Obligations so Incurred, the Collateral Agent or Trustee shall (and is a party or this Indenturehereby authorized and directed to) enter into such intercreditor agreement, bind the holders on the terms set forth therein and such suits perform and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect observe its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agentobligations thereunder.
Appears in 1 contract
Samples: Indenture (TAMINCO ACQUISITION Corp)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to Trustee will act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this IndentureAgent, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). The Collateral Agent shall will be entitled to rely uponthe protections, immunities 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for indemnities afforded the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(jc) Subject Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Note Lien, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Intercreditor AgreementsNote Liens or Security Documents or for any delay in doing so.
(d) The Collateral Agent will be subject to such directions as may be given it by the Trustee from time to time as required or permitted by this Indenture. Except as directed by the Trustee and as required or permitted by this Indenture, the Collateral Agent will not be obligated:
(1) to act upon directions purported to be delivered to it by any other Person;
(2) to foreclose upon or otherwise enforce any Note Lien; or
(3) to take any other action whatsoever with regard to any or all of the Note Liens, Security Documents or Collateral.
(e) The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Note Liens or Security Documents.
(f) In acting as Collateral Agent or co-Collateral Agent, the Collateral Agent and each co-Collateral Agent may rely upon and enforce each and all of the rights, powers, immunities, indemnities and benefits of the Trustee under Article 7.
(g) Each successor Trustee will become the successor Collateral Agent as and when the successor Trustee becomes the Trustee.
(h) At all times when the Trustee is authorized and empowered not itself the Collateral Agent, the Company will deliver to institute and maintain, or direct the Trustee copies of all Security Documents delivered to the Collateral Agent and copies of all documents delivered to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial pursuant to the interests of Holders, the Trustee or the Collateral AgentSecurity Documents.
Appears in 1 contract
Samples: Indenture (Tekni Plex Inc)
Collateral Agent. (a) 4.1 The Issuer hereby appoints Wilmington TrustCollateral Agent’s duties hereunder may be altered, National Associationamended, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent modified or revoked only by a writing signed by the terms of this Indenture Company, each Investor and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). Agent.
4.2 The Collateral Agent shall be entitled to obligated only for the performance of such duties as are specifically set forth herein and no duties shall be implied and may rely upon, and shall not incur be protected in relying or refraining from acting on any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing instrument reasonably believed by it the Collateral Agent to be genuine and to have been signed or sent presented by the proper personparty or parties. The Collateral Agent may also rely upon any statement made shall have no liability under and no duty to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary inquire as to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that than this Agreement. The Collateral Agent’s sole responsibility shall be for the Liens on safekeeping and disbursement of the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions Amount in accordance with the terms of an Intercreditor this Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, no implied duties or obligations and shall not be liable for the failure to disclose, charged with knowledge or notice of any information relating to the Issuer fact or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall circumstance not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Documentspecifically set forth herein. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or personally liable for creating, preserving, perfecting or validating the security interest granted to any act the Collateral Agent for the benefit of the Secured Parties pursuant may do or omit to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that do hereunder as the Collateral Agent shall execute while acting in good faith and deliver in the Collateral Documents to which it is a party and all agreementsabsence of gross negligence, power of attorney, documents and instruments incidental theretofraud or willful misconduct, and any act in accordance with the terms thereof. The Collateral Agent shall hold (directly done or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied omitted by the Collateral Agent pursuant to the terms advice of this Indenture the Collateral Agent’s legal counsel shall be conclusive evidence of such good faith. In no event shall the Collateral Agent be liable for incidental, indirect, special, consequential or punitive damages (including, but not limited to lost profits), even if the Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the Intercreditor Agreement.
(f) form of action. The Collateral Agent shall have no obligation whatsoever not be obligated to take any legal action or commence any proceeding in connection with the Collateral Amount, any account in which the Collateral Amount is deposited, this Agreement, or to appear in, prosecute or defend any such legal action or proceeding. Collateral Agent may consult legal counsel selected by it in the event of any dispute or question as to the Trustee or construction of any of the Holders to assure that the Collateral exists provisions hereof or is owned by of any Issuer other agreement or Guarantor or is cared for, protectedof its duties hereunder, or insured relating to any dispute involving any party hereto, and shall incur no liability and shall be fully indemnified from any liability whatsoever in acting in accordance with the opinion or has been encumberedinstruction of such counsel. Company shall promptly pay, or that upon demand, the reasonable fees and expenses of any such counsel, provided, however, if such amounts is not paid by the Company within 30 days of the date of the Collateral Agent’s Liens have been properly or sufficiently or lawfully createdinvoice, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all the each of the Issuer’s Holders shall be jointly and severally liable to pay such amounts.
4.3 The Collateral Agent is hereby expressly authorized to comply with and obey orders, judgments or decrees of any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty court of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to law. If the Collateral Agent pursuant to this Indenture obeys or complies with any Collateral Documentssuch order, it being understood and agreed that in respect of the Collateral, judgment or any act, omission, or event related theretodecree, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as not be liable to any of the foregoingparties hereto or to any other person, firm or corporation by reason of such order, judgment or decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction.
(g) Notwithstanding anything 4.4 The Collateral Agent shall not be liable in any respect on account of the identity, authorization or rights of the parties executing or delivering or purporting to execute or deliver the contrary in this Indenture Purchase Agreement or any documents or papers deposited or called for thereunder in the absence of gross negligence, fraud or willful misconduct.
4.5 The Collateral Document, neither Agent shall be entitled to employ such experts as the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended may deem necessary properly to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to advise the Collateral Agent in its capacity as suchconnection with the Collateral Agent’s duties hereunder, includingmay rely upon the advice of such experts, without limitationand may pay such experts reasonable compensation, the rights to reimbursement and indemnificationcosts of which compensation shall be borne by the Company.
(i) 4.6 The Collateral Agent’s responsibilities as Collateral Agent hereunder shall terminate if the Collateral Agent shall resign by giving written notice to the Company and the Investors. In the event of any such resignation, the Investors and the Company shall appoint a successor Collateral Agent and the Collateral Agent shall deliver to such successor Collateral Agent any funds and other documents held by the Collateral Agent hereunder or pursuant hereto.
4.7 If the Collateral Agent reasonably requires other or further instruments in connection with this Agreement or obligations in respect hereto, the necessary parties hereto shall join in furnishing such instruments.
4.8 It is understood and agreed that should any dispute arise with respect to the delivery and/or ownership or right of possession of the funds held by the Collateral Agent hereunder, or if otherwise permitted or required under this Agreement, the Collateral Agent is authorized and empowered directed in the Collateral Agent’s sole discretion (1) to appoint one retain in the Collateral Agent’s possession without liability to anyone all or more co-Collateral Agents as it deems necessary any part of said funds until such dispute shall have been settled either by mutual written agreement of the parties concerned or appropriate.
(j) Subject to by a final order, decree or judgment of a court of competent jurisdiction after the Intercreditor Agreementstime for appeal has expired and no appeal has been perfected, the Trustee is authorized and empowered to institute and maintain, or direct but the Collateral Agent shall be under no duty whatsoever to institute and maintain, or defend any such suits and proceedings as it may deem expedient or (2) to protect or enforce deliver the Liens securing the Second Lien Obligations or the Collateral Documents to which funds held by the Collateral Agent hereunder to a state or Trustee is a party Federal court having competent subject matter jurisdiction and located in the City of New York in accordance with the applicable procedure therefor.
4.9 The Company and each Investor agree jointly and severally to indemnify and hold harmless the Collateral Agent and its partners, employees, agents and representatives from any and all claims, liabilities, costs or expenses in any way arising from or relating to prevent any impairment of Collateral by any acts that may be unlawful the duties or in violation performance of the Collateral Documents Agent hereunder or the Intercreditor Agreements to which transactions contemplated hereby or by the Collateral Agent Purchase Agreement other than any such claim, liability, cost or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial expense to the interests extent the same shall have been determined by final, unappealable judgment of Holdersa court of competent jurisdiction to have resulted from the gross negligence, the Trustee fraud or willful misconduct of the Collateral Agent. Notwithstanding the foregoing, as between the Company and the Investors, the Company shall bear the cost of the Collateral Agent’s fees and expenses for serving as Collateral Agent hereunder.
Appears in 1 contract
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Holders by acceptance of the Notes, and each beneficial owner of an interest in a Note, hereby designates and appoints the Collateral Agent as its agent under this Indenture, the Intercreditor Agreements and the other Collateral Documents and Intercreditor Agreements the Issuer directs and authorizes and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture and the Collateral Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture Indenture, the Intercreditor Agreements and the other Collateral Documents, and Wilmington Trustconsents and agrees to the terms of the Intercreditor Agreements and each Collateral Document, National Association as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms or the terms of this Indenture. The Collateral Agent agrees to act as suchsuch on the express conditions contained in this Section 1508. The provisions of this Section 13.03 1508 are solely for the benefit of the Collateral Agent and neither none of the Trustee Trustee, any of the Holders nor any of the Holders Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions provision of this Indenture, the Intercreditor Agreement and Agreements and/or the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or Indenture, the Intercreditor Agreements and the other Collateral Documents, the duties of the Collateral Agent shall be ministerial and administrative in nature, and Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee or any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the other Collateral Documents, the Trustee and Documents or otherwise exist against the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor AgreementAgent. Without limiting the generality of the foregoing and subject sentence, the use of the term “agent” in this Indenture with reference to the Collateral DocumentsAgent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. Without limiting the generality of the foregoing the Collateral AgentAgent hereby undertakes, and each of the Holders by acceptance of the Notes and each beneficial owner of an interest in a Note authorize the Collateral Agent to:
(i) shall not hold and administer, or as the case may be subject to authorize and appoint, on behalf of and for the benefit of the Holders and beneficial owners of an interest in the Notes, any other person in accordance with the Intercreditor Agreements, any non-accessory Collateral (nicht-akzessorische Sicherheit) governed by the laws of the Federal Republic of Germany as fiduciary or other implied duties, regardless (treuhänderisch) in its own name but for the benefit of whether the Holders and beneficial owners of an Event of Default has occurred and is continuinginterest in the Notes;
(ii) shall not have hold and administer any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated accessory Collateral (akzessorische Sicherheit) governed by the Collateral Documents or Intercreditor Agreement that laws of the Collateral Agent is required to exerciseFederal Republic of Germany as direct representative (direkter Stellvertreter) in the name and on behalf of the Holders and beneficial owners of an interest in the Notes;
(iii) accept, enter into and execute, as its direct representative (direkter Stellvertreter) any pledge or other creation of any accessory security right (akzessorische Sicherheit) granted in favor of any Holder under German law in connection with the Notes and to agree to and execute in its name and on its behalf as its direct representative (direkter Stellvertreter) any amendments, confirmations and/or alterations to any Collateral Document governed by German law which creates a pledge or any other accessory security right (akzessorische Sicherheit) including the release or confirmation of release of such Collateral.
(b) The Collateral Agent may perform any of its duties under this Indenture, the Intercreditor Agreements or the other Collateral Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates, (a “Related Person”) and shall not, except as expressly set forth in the Collateral Documents, have any duty be entitled to discloseadvice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be liable responsible for the failure to disclosenegligence or willful misconduct of any receiver, any information relating to agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) Neither the Issuer or Collateral Agent nor any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
Related Persons shall (ivi) shall not be liable for any action taken or not omitted to be taken by it any of them under or in connection with this Indenture, the Intercreditor Agreements or the other transactions contemplated hereby (A) with the consent or at the request of the Trustee, (B) in the absence of except for its own gross negligence or willful misconduct as determined by a final order of a court of competent jurisdiction) or under or in connection with any Collateral Document or the transactions contemplated thereby (except for its own gross negligence or willful misconduct as determined by a final order of a court of competent jurisdiction), or (Cii) be responsible in reliance on a certificate of an authorized officer any manner to any of the Issuer stating that such action is permitted Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the terms of the Intercreditor Agreement Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral DocumentAgent under or in connection with, this Indenture, the Intercreditor Agreements or the other Collateral Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Intercreditor Agreements or the other Collateral Documents, or for any failure of any Grantor or any other party to this Indenture or the Collateral Documents to perform its obligations hereunder or thereunder. Neither the Collateral Agent nor any of its Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Intercreditor Agreements or the other Collateral Documents or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Collateral Agent shall be entitled (in the absence of gross negligence or willful misconduct) 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 or any other Grantor), independent accountants and/or other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be deemed not bound to have actual knowledge 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. Unless otherwise expressly required hereunder or pursuant to any Collateral Document, the Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Intercreditor Agreements or the other Collateral Documents unless it shall first receive such written advice or concurrence of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and received all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected from claims by any Holders in acting, or in refraining from acting, under this Indenture, the Intercreditor Agreements or the other Collateral Documents in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Collateral Agent;
(v) Agent shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) received written notice from the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein Holders or the occurrence of any Issuer referring to this Indenture, describing such Default or Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph Default and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees stating that the Collateral Agent shall execute and deliver the Collateral Documents to which it such notice is a party and all agreements, power “notice of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. default.” The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct such action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, such Default or relating to, this Indenture, except for any such proceeds or payments received Event of Default as may be requested by the Trustee from in accordance with Article Six or the Collateral Agent pursuant to the terms Holders of this Indenture, or (ii) payments from the Collateral Agent a majority in excess aggregate principal amount of the amount required Notes (subject to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor AgreementSection 1508).
(f) The Collateral Agent shall have no obligation whatsoever may resign at any time by notice to the Trustee or any and the Issuer, such resignation to be effective upon the acceptance of the Holders a successor agent to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the its appointment as Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to . If the Collateral Agent resigns under this Indenture, the Issuer shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent (as stated in the notice of resignation), the Issuer shall appoint a successor collateral agent. If no successor collateral agent is appointed by the Issuer pursuant to this Indenture or any Collateral Documents, it being understood and agreed that the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in respect the notice of the Collateral, or any act, omission, or event related thereto, resignation) the Collateral Agent shall have no other duty or 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 Section 1508 (and Section 607) 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 whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything actions taken or omitted to the contrary in this Indenture or any Collateral Document, neither be taken by it while it was the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of under this Indenture shall apply mutatis mutandis to Indenture. If the Collateral Agent in consolidates, merges or converts into, or transfers all or substantially all of its capacity as suchcorporate trust business to, including, without limitationanother corporation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to successor corporation without any further act will be the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the successor Collateral Agent.
Appears in 1 contract
Collateral Agent. (a) The Issuer Each Holder by accepting a Note hereby (i) irrevocably appoints Wilmington Trust(and authorizes and directs the Trustee to appoint) JPMorgan Chase Bank, National Association, N.A. as Collateral Agent to act on behalf of as collateral agent for the Secured Parties as the Collateral Agent Holders under this Indenture and each of the Collateral Documents and Intercreditor Agreements any other relevant documents to which the Collateral Agent is a party, and (ii) irrevocably appoints JPMorgan Chase Bank, N.A. as Collateral Agent and authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture and the Collateral Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association . The Collateral Agent agrees to act as suchsuch on the express conditions contained in this Section 17.05. The provisions of this Section 13.03 17.05 are solely for the benefit of the Collateral Agent and neither none of the Trustee (except with respect to Section 17.05(s) below) nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained hereinherein other than as expressly provided in Article 3 hereof. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions provision of this Indenture, the Intercreditor Agreement Indenture and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth herein and in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or the Company, and empowered to receive for the benefit of the Holders any funds collected no implied covenants, functions, responsibilities, duties, obligations or distributed under liabilities shall be read into this Indenture or the Collateral Documents and Intercreditor Agreements to which or otherwise exist against the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor AgreementAgent. Without limiting the generality of the foregoing and subject sentence, the use of the term “agent” in this Indenture with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom, and is continuing;intended to create or reflect only an administrative relationship between independent contracting parties.
(iib) shall not have The Collateral Agent may perform any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights of its duties under this Indenture and powers expressly contemplated by the Collateral Documents by or Intercreditor Agreement that through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the Collateral Agent is required respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates, (a “Related Person”) and shall be entitled to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty advice of counsel concerning all matters pertaining to disclosesuch duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be liable responsible for the failure to disclosenegligence or willful misconduct of any receiver, any information relating to the Issuer agent, employee, attorney-in-fact or any Related Person that it selects as long as such selection was made in good faith.
(c) None of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
respective Related Persons shall (ivi) shall not be liable for any action taken or not omitted to be taken by it any of them under or in connection with this Indenture or the transactions contemplated hereby (A) with the consent or at the request of the Trustee, (B) in the absence of except for its own gross negligence or willful misconduct misconduct) or under or in connection with any Collateral Document or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (Cii) be responsible in reliance on a certificate of an authorized officer any manner to any of the Issuer stating that such action is permitted Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the terms Company or Affiliate of the Intercreditor Agreement Company, or any Officer or Related Person thereof, contained in this Indenture, or any other Security Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral DocumentAgent under or in connection with, this Indenture or the Collateral Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture or the Collateral Documents, or for any failure of the Company or any other party to this Indenture or the Collateral Documents to perform its obligations hereunder or thereunder or for the value or sufficiency of any Collateral. None of the Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture or the Collateral Document or to inspect the properties, books, or records of the Company or any of its Affiliates.
(d) 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 counsel to the Company), 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 deemed not fully justified in failing or refusing to have actual knowledge take any action under this Indenture or the Collateral Documents unless it shall first receive such advice or concurrence of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer Holders of a majority in aggregate principal amount of the Notes or Pari Passu Secured Parties, as may be applicable, as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and received 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 Indenture or the Collateral Documents in accordance with a Responsible request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes or the Pari Passu Obligations, as may be applicable, and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless an Officer of the Collateral Agent;
(v) Agent shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) received written notice from the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein Trustee or the occurrence of any Company referring to this Indenture, describing such Default or Event of Default, (D) Default and stating that such notice is a “notice of default” and the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted Trustee has provided to the Collateral Agent for the benefit a copy of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereofsuch notice. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral DocumentDocuments, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver take such action with respect to such Default or Event of Default as may be requested by the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act Trustee in accordance with Article 6 hereof or the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf Holders of a majority in aggregate principal amount of the Holders on the Collateral for their benefit, Notes (subject to this Section 17.05) or the provisions of the Intercreditor Agreement. Holders may notPari Passu Obligations, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreementapplicable.
(f) The Collateral Agent shall have no obligation whatsoever may resign at any time by written notice to the Trustee or any of and the Holders to assure that Company, and the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the retiring Collateral Agent’s Liens have been properly or sufficiently or lawfully createdappointment, perfectedpowers and duties as the Collateral Agent hereunder shall be terminated, protected, maintained or enforced or are entitled subject to any particular priority, or to determine whether all and in accordance with Section 4.15(c) of the Issuer’s or any Guarantor’s property constituting Pledge Agreement and the other provisions of the Collateral has been properly and completely listed or deliveredDocuments. Upon the acceptance of its appointment as successor collateral agent in accordance with the terms of the Collateral Documents, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or such successor collateral agent shall succeed to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authoritiespowers and duties of the retiring Collateral Agent, and powers granted the term “Collateral Agent” shall mean such successor collateral agent. After the retiring Collateral Agent’s resignation, the provisions of this Section 17.05 (and Section 7.02) 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 available omitted to be taken by it while it was the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or under this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Indenture, the Collateral Documents and the Intercreditor Agreements Agreement and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Collateral Documents and the Intercreditor Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture Indenture, the Collateral Documents and the Collateral DocumentsIntercreditor Agreement, and Wilmington Trustconsents and agrees to the terms of the Intercreditor Agreement and each Collateral Document, National Association as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as suchsuch on the express conditions contained in this Section 12.9. The provisions of this Section 13.03 12.9 are solely for the benefit of the Collateral Agent and neither none of the Trustee Trustee, any of the Holders nor any of the Holders Grantors shall have any rights as a third party beneficiary of any of the provisions contained hereinherein other than as expressly provided in Section 12.4. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions provision of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or Indenture, the Collateral DocumentsDocuments and the Intercreditor 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 responsibilities, except those expressly set forth herein and in the other Note Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken Agreement or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and otherwise exist against the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor AgreementAgent. Without limiting the generality of the foregoing and subject sentence, the use of the term “agent” in this Indenture with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom, and is continuing;intended to create or reflect only an administrative relationship between independent contracting parties.
(iib) shall not have The Collateral Agent may perform any duty to take any discretionary action or exercise any discretionary powersof its duties under this Indenture, except discretionary rights and powers expressly contemplated by the Collateral Documents or the Intercreditor Agreement that by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the Collateral Agent is required respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates, (a “Related Person”) and shall be entitled to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty advice of counsel concerning all matters pertaining to disclosesuch duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be liable responsible for the failure to disclosenegligence or willful misconduct of any receiver, any information relating to the Issuer agent, employee, attorney-in-fact or any Related Person that it selects as long as such selection was made in good faith.
(c) None of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
respective Related Persons shall (ivi) shall not be liable for any action taken or not omitted to be taken by it any of them under or in connection with this Indenture or the transactions contemplated hereby (A) with the consent or at the request of the Trustee, (B) in the absence of except for its own gross negligence or willful misconduct misconduct) or (C) under or in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of connection with any Collateral Document or the Intercreditor Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, or any other Note Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral DocumentAgent under or in connection with, this Indenture, the Collateral Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents or the Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents or the Intercreditor Agreement to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents or the Intercreditor Agreement or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) 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 or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents or the Intercreditor Agreement unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e) The Collateral Agent shall not be deemed not to have actual knowledge or notice of the occurrence of any Default or Event of Default Default, unless and until a Trust Officer of the Collateral Agent shall have received written notice describing such Event of Default is given by from the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for referring to this Indenture, describing such Default or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph Default and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees stating that the Collateral Agent shall execute and deliver the Collateral Documents to which it such notice is a party and all agreements, power “notice of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. default.” The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct such action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, such Default or relating to, this Indenture, except for any such proceeds or payments received Event of Default as may be requested by the Trustee from in accordance with Article VI or the Collateral Agent pursuant to the terms Holders of this Indenture, or (ii) payments from the Collateral Agent a majority in excess aggregate principal amount of the amount required Notes (subject to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor AgreementSection 12.9).
(f) The Collateral Agent shall have no obligation whatsoever may resign at any time by notice to the Trustee or any and the Issuer, such resignation to be effective upon the acceptance of the Holders a successor agent to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the its appointment as Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to . If the Collateral Agent pursuant resigns under this Indenture, the Issuer shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to this Indenture or any Collateral Documents, it being understood and agreed that in respect the intended effective date of the Collateral, or any act, omission, or event related theretoresignation of the Collateral Agent (as stated in the notice of resignation), the Collateral Agent shall have no other duty or liability whatsoever may appoint, after consulting with the Trustee, subject to the Trustee or any Holder consent of the Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Collateral Agent shall be entitled to 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 Section 12.9 (and Section 7.7) 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 of the foregoing.
(g) Notwithstanding anything actions taken or omitted to the contrary in this Indenture or any Collateral Document, neither be taken by it while it was the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or under this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Samples: Indenture (Essar Steel Algoma Inc.)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees has been appointed to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken hereunder by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order)Secured Parties. The Collateral Agent shall be entitled to rely uponobligated, and shall not incur have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper personrights, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions action (including the release or substitution of Collateral), solely in accordance with this Agreement and the terms of an Intercreditor Agreementother Financing Documents. Without limiting the generality In furtherance of the foregoing and subject provisions of this Section 10, each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral Documents, the Collateral Agent:
hereunder (including to (i) shall not be subject to request judicial relief, in any fiduciary insolvency or liquidation proceeding or in any other implied dutiescourt, regardless that would hinder, delay, limit or prohibit the lawful exercise or enforcement of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action right or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating remedy otherwise available to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates Secured Parties in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request respect of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest Liens granted to the Collateral Agent for the benefit of the Secured Parties pursuant Parties; (ii) oppose or otherwise contest (or support any other Person in contesting) any motion for relief from the automatic stay or any motion to contest any injunction against foreclosure or enforcement of Liens granted to the Collateral Documents or any lien and/or any filingAgent, for the benefit of the Secured Parties, made by the Collateral Agent, acting at the direction of, or recording as consented to by, the Administrative Agent in any insolvency or liquidation proceeding; (iii) oppose or otherwise creatingcontest (or support any other Person in contesting) any lawful exercise by the Collateral Agent, perfectingacting at the direction of, continuing or maintaining as consented to by, the Administrative Agent, of the right to ratably credit bid the Obligations at any lien or sale in foreclosure of the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed Liens granted to the foregoing provisions Collateral Agent, for the benefit of the prior paragraph and shall be bound Secured Parties; or (iv) oppose or otherwise contest (or support any other Person in contesting) any other request for judicial relief made in any court by those agreements the Collateral Agent, acting at the direction of, or as consented to by, the Administrative Agent relating to the fullest extent permitted lawful enforcement of any Lien), it being understood and agreed by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, such Secured Party that all rights and remedies hereunder may be exercised solely by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver for the Collateral Documents to which it is a party and all agreements, power benefit of attorney, documents and instruments incidental thereto, and act the Secured Parties in accordance with the terms thereofof this Section 10. The Collateral Agent shall hold (directly or through and any agent) co-agents, sub-agents and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, setattorneys-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied in-fact appointed by the Collateral Agent pursuant to the terms applicable Financing Documents for purposes of this Indenture and holding or enforcing any Lien on the Intercreditor Agreement.
Collateral (for any portion thereof) The Collateral Agent shall have no obligation whatsoever to the Trustee or granted under any of the Holders Security Documents shall be entitled to assure that the Collateral exists or is owned benefits of all provisions of Section 8 (Agents) of the Credit Agreement, and Article 5 (Actions by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
Agency Appointment Agreement (h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more though such co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to agents, sub-agents and attorneys-in-fact were the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the “Collateral Agent” named therein) as if set forth in full herein with respect thereto.
Appears in 1 contract
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf Limitation of the Secured Parties as Collateral Agent's Liability; ----------------------------------------------- Responsibilities of the Collateral Agent. The Collateral Agent's duties and ---------------------------------------- responsibilities are fully set forth herein and the Collateral Agent shall have no duties or responsibilities other than those set forth herein. The Collateral Agent's responsibility and liability under this Indenture and each Agreement shall be limited as follows:
(i) the Collateral Agent does not represent, warrant or guaranty to the Holders, the Administrative Agent or the RHINOS Holders from time to time the performance of the Company; (ii) the Collateral Agent shall have no responsibility to the Company, the Holders, the Administrative Agent or the RHINOS Holders as a consequence of performance or non-performance by the Collateral Agent hereunder, except for any gross negligence or willful misconduct of the Collateral Documents Agent; (iii) the Company shall remain solely responsible for all aspects of the Company's business and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to conduct; (iv) the Collateral Agent does not guarantee any return and is not liable for any losses as long as the investment directions are followed and (v) the Collateral Agent is not obligated to supervise or inspect the Company or inform any third party of any matter referred to above. No implied covenants or obligations shall be inferred from this Agreement against the Collateral Agent, nor shall the Collateral Agent be bound by the provisions of any agreement beyond the specific terms of this Indenture hereof. Specifically and without limiting the foregoing, the Collateral DocumentsAgent shall in no event have any liability in connection with its investment, reinvestment or liquidation, in good faith and Wilmington Trustin accordance with the terms hereof, National Association agrees to act as such. The provisions of this Section 13.03 are solely any funds or U.S. Government Obligations held by it hereunder, including without limitation any liability for the benefit any delay not resulting from gross negligence or willful misconduct of the Collateral Agent in such investment, reinvestment or liquidation, or for any loss of principal or income incident to any such delay. The Collateral Agent, the Holders, the Administrative Agent and neither the Trustee nor RHINOS Holders shall be entitled to rely upon any judicial order or judgment, upon any written opinion of counsel or upon any certification, instruction, notice, or other writing delivered to it by the Company or the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance compliance with the provisions of this Indenture, Agreement without being required to determine the Intercreditor authenticity or the correctness of any fact stated therein or the propriety or validity of service thereof. The Collateral Agent may act in reliance upon any instrument comporting with the provisions of this Agreement or signature believed by it to be genuine and may assume that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the Collateral Documents, and the exercise by provisions hereof has been duly authorized to do so. At any time the Collateral Agent may request in writing an instruction in writing from the Company, and may at its own option include in such request the course of action it proposes to take and the date on which it proposes to act, regarding any rights or remedies set forth herein matter arising in connection with its duties and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documentsobligations hereunder; provided, however, that the Collateral Agent shall not have any duties or responsibilities except those expressly set forth state in such -------- ------- request that it believes in good faith that such proposed course of action is consistent with another identified provision of this Indenture, the Collateral Documents to which it is party and in the Intercreditor AgreementsAgreement. The Collateral Agent shall not be liable to the Company for any action taken acting without the Company's consent in accordance with such a proposal on or not taken by it in after the absence date specified therein if (i) the specified date is at least two Business Days after the Company receives the Collateral Agent's request for instructions and its proposed course of its own gross negligence or willful misconduct action, and (as determined by a court of competent jurisdiction in a finalii) prior to so acting, non-appealable order). The the Collateral Agent shall be entitled to rely upon, and shall has 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 received the proper personwritten instructions requested from the Company. The Collateral Agent may also rely upon any statement made act pursuant to it orally or by telephone and believed the written advice of counsel chosen by it with respect to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject matter relating to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof Agreement and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(ivSection 4(a)(ii)) shall not be liable for any action taken or omitted in accordance with such advice. The Collateral Agent shall not taken by it (A) be called upon to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder. In the consent or at the request event of the Trustee, (B) any ambiguity in the absence provisions of this Agreement with respect to any funds or property deposited hereunder, the Collateral Agent shall be entitled to refuse to comply with any and all claims, demands or instructions with respect to such funds or property, and the Collateral Agent shall not be or become liable for its own gross negligence failure or willful misconduct refusal to comply with conflicting claims, demands or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Documentinstructions. The Collateral Agent shall be deemed not entitled to refuse to act until either any conflicting or adverse claims or demands shall have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received been finally determined by a Responsible Officer court of competent jurisdiction or settled by agreement between the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statementconflicting claimants as evidenced in a writing, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over satisfactory to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty received security or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis an indemnity satisfactory to the Collateral Agent in its capacity as such, including, without limitation, the rights sufficient to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct save the Collateral Agent to institute harmless from and maintainagainst any and all loss, such suits and proceedings as it may deem expedient to protect liability or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to expense which the Collateral Agent may incur by reason of its acting or Trustee is a party or failure to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the act. The Collateral Agent may in addition elect in its sole option to commence an interpleader action or Trustee is a party seek other judicial relief or this Indenture, and such suits and proceedings orders as the Trustee or the Collateral Agent may deem expedient necessary. No provision of this Agreement shall require the Collateral Agent to preserve expend or protect risk its interests and the interests of the Holders own funds or otherwise incur any financial liability in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement performance of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agentits duties hereunder.
Appears in 1 contract
Collateral Agent. (a) The Issuer hereby appoints Wilmington TrustBank of America, National Association, N.A. to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Security Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Security Documents, and Wilmington TrustBank of America, National Association N.A. agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement Agreements and the Collateral Security Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Security Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Security Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Security Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Security Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an the Intercreditor AgreementAgreements. Without limiting the generality of the foregoing and subject to the Collateral Security Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Security Documents or the Intercreditor Agreement Agreements that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Security Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct (it being understood that any determination that the Collateral Agent’s actions constituted gross negligence or willful misconduct must be determined by a court of competent jurisdiction in a final, non-appealable order) or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement Agreements or any other Collateral Security Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Security Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Security Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Security Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Security Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Trustee and the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Security Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the SecuritiesNotes, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Security Document, each Holder, by its acceptance of the SecuritiesNotes, agrees that the Collateral Agent shall execute and deliver the Collateral Security Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the applicable Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Security Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (iA) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Note Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (iiB) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the applicable Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Security Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Security Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Security Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second First Lien Obligations or the Collateral Security Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Security Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Samples: Indenture (Qwest Corp)
Collateral Agent. (a) The Issuer hereby appoints Wilmington TrustU.S. Bank National Association shall initially act as Collateral Agent and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Security Documents, National Association, to act on behalf of the Secured Parties as neither the Collateral Agent under this Indenture and each nor any of its officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral Documents and Intercreditor Agreements and or for any delay in doing so or shall be under any obligation to exercise such powers and perform such duties as are expressly delegated Dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor or any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holderspart thereof. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Security Documents, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth in this Indenture, the Collateral Documents to which it is party Indenture and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Security Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documentsparty, (B) agrees that the Liens on the Collateral securing the Obligations nor shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized have or be deemed to take have any trust or refrain from taking any actions in accordance other fiduciary relationship with the terms of an Intercreditor AgreementTrustee, any Holder, the Issuer or the Parent Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture or the Security Documents or shall otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” or “Agent” in this Indenture and subject the Security Documents with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom and is continuing;
(ii) shall not have any duty intended to take any discretionary action create or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of reflect only an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Documentadministrative relationship between independent contracting parties. The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own willful misconduct or gross negligence (as determined by a final, non-appealable order of a court of competent jurisdiction).
(b) The Collateral Agent is authorized and directed to (i) enter into the Security Documents, (ii) bind the Holders on the terms as set forth in the Security Documents and (iii) perform and observe its obligations under the Security Documents.
(c) The Collateral Agent shall act pursuant to the instructions of the Holders and the Trustee with respect to the Security Documents and the Collateral. For the avoidance of doubt, the Collateral Agent shall have no discretion under this Indenture or the Security Documents and shall not be required to make or give any determination, consent, approval, request or direction without the written direction of the requisite Holders or the Trustee, as applicable. After the occurrence of an Event of Default, the Trustee may direct the Collateral Agent in connection with any action required or permitted by this Indenture or the Security Documents.
(d) The Collateral Agent shall not be deemed not to have actual knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee, a Holder or the Issuer referring to this Indenture, describing such Default or Event of Default unless and until written stating that such notice describing is a “notice of default”. The Collateral Agent shall take such action with respect to such Default or Event of Default is given as may be requested by the Trustee or the Issuer and received by Holders of a Responsible Officer majority in aggregate principal amount of the Securities subject to this Article 11.
(e) No provision of this Indenture or any Security Document shall require the Collateral Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Holders (or the Trustee in the case of the Collateral Agent;
(v) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it. Notwithstanding anything to the contrary contained in this Indenture or the Security Documents, in the event the Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Collateral Agent shall not be responsible for required to commence any such action, exercise any remedy, inspect or have conduct any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents studies of any certificateproperty or take any such other action if the Collateral Agent has determined that the Collateral Agent may incur personal liability as a result of the presence at, report or other document delivered thereunder release on or in connection therewithfrom, (C) the performance Collateral or observance such property of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by hazardous substances unless the Collateral Documents, (E) Agent has received security or indemnity from the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth Holders in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted an amount and in a form all satisfactory to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filingin its sole discretion, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that protecting the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and from all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereofsuch liability. The Collateral Agent shall hold (directly or through at any agent) and is directed by each Holder to so hold, and shall time be entitled to enforce on behalf of cease taking any action described in this Section 11.09(e) if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreementsufficient.
(f) The Collateral Agent shall have no obligation whatsoever not be responsible in any manner to any of the Trustee or any Holder for the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture or the Holders to assure that the Collateral exists Security Documents or is owned by for any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all failure of the Issuer’s , the Parent Guarantor or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant other party to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, Security Documents to perform its obligations hereunder or any act, omission, or event related thereto, the thereunder. The Collateral Agent shall have no other duty or liability whatsoever not be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the foregoingagreements contained in, or conditions of, this Indenture or the Security Documents or to inspect the properties, books or records of the Issuer or the Parent Guarantor.
(g) Notwithstanding anything The parties hereto and the Holders hereby agree and acknowledge that the Collateral Agent shall not assume, be responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs (including any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to the contrary in any environmental law as a result of this Indenture or the Security Documents or any Collateral Documentactions taken pursuant hereto or thereto. Further, neither the parties hereto and the Holders hereby agree and acknowledge that, in the exercise of its rights under this Indenture and the Security Documents, the Collateral Agent nor may hold or obtain indicia of ownership primarily to protect the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any security interest of the Collateral Documents Agent in the Collateral and that any such actions taken by the Collateral Agent shall not be construed as or otherwise constitute any participation in the security interests or Liens intended to be created therebymanagement of such Collateral.
(h) The benefits, protections and indemnities Upon the receipt by the Collateral Agent of a written request of the Trustee hereunderIssuer signed by two Officers pursuant to this Section 11.09(h) (a “Security Document Order”), as applicable the Collateral Agent is hereby authorized to execute and enter into, and shall execute and enter into, without the further consent of this Indenture any Holder or the Trustee, any Security Document to be executed after the Issue Date. Such Security Document Order shall apply mutatis mutandis (i) state that it is being delivered to the Collateral Agent in its capacity as suchpursuant to, includingand is a Security Document Order referred to in, without limitationthis Section 11.09(h) and (ii) instruct the Collateral Agent to execute and enter into such Security Document. Any such execution of a Security Document shall be at the direction and expense of the Issuer, upon delivery to the rights Collateral Agent of an Officers’ Certificate and an Opinion of Counsel stating that all conditions precedent to reimbursement the execution and indemnificationdelivery of such Security Document have been satisfied. The Holders, by their acceptance of the Securities, hereby authorize and direct the Collateral Agent to execute such Security Documents.
(i) The Collateral Agent is authorized Agent’s resignation or removal shall be governed by provisions equivalent to Section 7.07(a), Section 7.07(b), Section 7.07(c), Section 7.07(d) and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriateSection 7.07(f).
(j) Subject The Collateral Agent shall be entitled to all of the Intercreditor Agreementsprotections, immunities, indemnities, rights and privileges of the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or set forth in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and all such suits protections, immunities, indemnities, rights and proceedings as the Trustee or privileges shall apply to the Collateral Agent may deem expedient to preserve in its roles under any Security Document, whether or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agentnot expressly stated therein.
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Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees has been appointed to act as such. The provisions of this Section 13.03 are solely for Collateral Agent hereunder by each Secured Party either pursuant to the benefit Loan Documents or pursuant to its acceptance of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreementsbenefits hereof. The Collateral Agent shall not only be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). The Collateral Agent shall be entitled to rely uponobligated, and shall not incur have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any liability for relying uponrights, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to take or refrain from taking any action (including, without limitation, the release or substitution of Pledged Equity Interests), solely in accordance with this Agreement and the Credit Agreement. Without the written consent of the Secured Parties that would be affected thereby, no amendment, modification, termination, or consent shall be effective if the effect thereof would release any of the Pledged Equity Interests except as expressly provided herein. In furtherance of the foregoing provisions of this Section, each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have been signed or sent no right individually to realize upon any of the Pledged Equity Interests hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the proper person. The Collateral Agent may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it benefit of each Secured Party in accordance with the advice terms of any such counsel, accountants or expertsthis Section.
(b) Subject to the provisions appointment and acceptance of the Intercreditor Agreements and the a successor Collateral DocumentsAgent as provided in this paragraph, the Trustee and the Collateral Agent are authorized may resign at any time by notifying Grantor, Lenders, the Administrative Agents, the Issuing Banks and empowered the Administrative Borrower. Upon any such resignation, the applicable Required Lenders shall have the right, in consultation with the Administrative Borrower, to receive for appoint a successor. If no successor shall have been so appointed by such Required Lenders and shall have accepted such appointment within 30 days after the benefit retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Holders any funds collected or distributed under Lenders and the Collateral Documents and Intercreditor Agreements to which the Issuing Banks, appoint a successor Collateral Agent which shall be a commercial bank or Trustee is a party and to make further distributions an Affiliate of any such funds to Holders according to the provisions of this Indenturecommercial bank.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to Upon the provisions acceptance of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the appointment as Collateral Agent are authorized to take or refrain from taking any actions in accordance with under the terms of an Intercreditor Agreement. Without limiting this Section by a successor Collateral Agent, that successor Collateral Agent shall thereby also be deemed the generality successor Collateral Agent and such successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the foregoing retiring Collateral Agent under this Agreement, and subject to the retiring Collateral Documents, the Collateral Agent:
Agent under this Agreement shall promptly (i) shall not be subject transfer to any fiduciary such successor Collateral Agent all the Pledged Equity Interests, together with all records and other documents necessary or other implied dutiesappropriate in connection with the performance of the duties of the successor Collateral Agent under this Agreement, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty execute and deliver to such successor Collateral Agent, and take any discretionary action such other actions, as may be necessary or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by appropriate in connection with the Collateral Documents or Intercreditor Agreement that the assignment to such successor Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the TrusteePledge, (B) in the absence of its own gross negligence whereupon such retiring or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The removed Collateral Agent shall be deemed not to have actual knowledge of discharged from its duties and obligations under this Agreement. After any Event of Default unless and until written notice describing such Event of Default is given by the Trustee retiring or the Issuer and received by a Responsible Officer of removed Collateral Agent’s resignation or removal hereunder as the Collateral Agent;
(v) , the provisions of this Agreement shall not be responsible for inure to its benefit as to any actions taken or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported omitted to be created taken by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to it under this Agreement while it was the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by lawhereunder.
(d) Subject to Upon the provisions occurrence of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders events set forth in this Section 6, and specifically for the purposes set forth in Section 6(c), Grantor agrees to assure that reasonably cooperate and assist the retiring Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that Agent and the succeeding Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or for the genuinenesspurposes of giving effect to, validityand executing any documents required for, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any the due transfer of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that Pledge in respect favor of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the succeeding Collateral Agent.
Appears in 1 contract
Collateral Agent. Notwithstanding anything to the contrary herein, the following provisions shall govern the Collateral Agent’s rights, powers, obligations and duties under this Security Agreement:
(a) The Issuer Each of the Holders and the Trustee hereby designates and appoints Wilmington TrustWxxxx Fargo Bank, National Association, Association to act on behalf of the Secured Parties as the Collateral Agent under this Indenture Security Agreement, and each of hereby authorizes the Collateral Documents and Intercreditor Agreements Agent to take such actions on its behalf under the provisions of this Security Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all HoldersSecurity Agreement. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral DocumentsSecurity Agreement, the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth in this IndentureSecurity Agreement or any fiduciary relationship with any Holders or Secured Parties or holders of First Lien Obligations or agents of holders of First Lien Obligation, and no implied covenants, functions or responsibilities shall be read into this Security Agreement or otherwise exist against Collateral Agent.
(b) Notwithstanding anything herein to the contrary, in no event shall the Collateral Agent have any obligation to inquire or investigate as to the correctness, veracity, or content of any instruction received from any other Security Documents. In no event shall the Collateral Agent have any liability in respect of any such instruction received by it and relied on with respect to any action or omission taken pursuant thereto.
(c) With respect to the Collateral Agent’s duties under this Security Agreement or any of the Security Documents, the Collateral Documents Agent may act through its attorneys, accountants, experts and such other professionals as the Collateral Agent deems necessary, advisable or appropriate and shall not be responsible for the misconduct or negligence of any attorney, accountant, expert or other such professional appointed with due care.
(d) Neither the Collateral Agent nor any of its experts, officers, directors, employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any action lawfully taken or omitted to which be taken by it is party under or in connection with this Security Agreement (except for its gross negligence or willful misconduct), or (ii) responsible in any manner for any recitals, statements, representations or warranties (other than its own recitals, statements, representations or warranties) made in this Security Agreement or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Security Agreement or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Security Agreement or for any failure of the Grantors or any other Person to perform their obligations hereunder and in the Intercreditor Agreementsthereunder. The Collateral Agent shall not be liable under any obligation to any Person to ascertain or to inquire as to (i) the observance or performance of any of the agreements contained in, or conditions of, this Security Agreement or to inspect the properties, books or records of the Grantors, (ii) whether or not any representation or warranty made by any Person in connection with this Security Agreement is true, (iii) the performance by any Person of its obligations under this Security Agreement or (iv) the breach of or default by any Person of its obligations under this Security Agreement.
(e) The Collateral Agent shall not be bound to (i) account to any Person for any sum or the profit element of any sum received for its own account; (ii) disclose to any other Person any information relating to the Person if such disclosure would, or might, constitute a breach of any law or regulation or be otherwise actionable at the suit of any Person; (iii) be under any fiduciary duties or obligations other than those for which express provision is made in this Security Agreement; or (iv) be required to take any action taken that it believes, based on advice of counsel, is in conflict with any applicable law, this Security Agreement, or any order of any court or administrative agency;
(f) The Collateral Agent shall be authorized to but shall not taken by it be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or monitoring or maintaining the perfection of any security interest in the absence Collateral. It is expressly agreed, to the maximum extent permitted by applicable law, that the Collateral Agent shall have no responsibility for (i) taking any necessary steps to preserve rights against any Person with respect to any Collateral or (ii) taking any action to protect against any diminution in value of its own the Collateral, but, in each case (A) subject to the requirement that the Collateral Agent may not act or omit to take any action if such act or omission would constitute gross negligence or willful misconduct and (B) the Collateral Agent may do so and all expenses reasonably incurred in connection therewith shall be part of the Obligations.
(g) The Collateral Agent shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent in good faith, except to the extent of the Collateral Agent’s gross negligence or willful misconduct.
(h) The Collateral Agent shall not be responsible for, nor incur any liability with respect to, (i) the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the security interest in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part under this Security Agreement or any of the other Security Documents, except to the extent such action or omission constitutes gross negligence or willful misconduct on the part of the Collateral Agent, (ii) the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iii) the validity of the title of the Grantors to the Collateral, (iv) insuring the Collateral or (v) the payment of taxes, charges or assessments upon the Collateral or otherwise as determined to the maintenance of the Collateral.
(i) Notwithstanding anything in this Security Agreement to the contrary, in no event shall the Collateral Agent or any officer, director, employee, representative or agent of the Collateral Agent be liable under or in connection with this Security Agreement for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including but not limited to lost profits or loss of opportunity, whether or not foreseeable, even if the Collateral Agent has been advised of the possibility thereof and regardless of the form of action in which such damages are sought. In no event shall the Collateral Agent be obligated to invest any amounts received by a court of competent jurisdiction in a final, non-appealable order). it hereunder.
(j) The Collateral Agent shall be entitled conclusively to rely uponrely, and shall not incur be fully protected in relying, upon any liability for relying uponnote, any noticewriting, resolution, request, direction, certificate, opinion, notice, consent, affidavit, letter, cablegram, telegram, telecopy, email, telex or teletype message, statement, instrument, order or other document or other writing conversation believed by it in good faith to be genuine and correct and to have been signed signed, sent or sent by the proper person. The Collateral Agent may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with Person or Persons and/or upon advice and/or statements of legal counsel (who may be counsel for the Trustee)counsel, independent accountants and other experts selected by it, the Collateral Agent and need not investigate any fact or matter stated in any such document. Any such statement of legal counsel shall not be liable for full and complete authorization and protection in respect of any action taken or not taken suffered by it hereunder in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Documenttherewith. The Collateral Agent shall be deemed not fully justified in failing or refusing to have actual knowledge take any action under this Security Agreement or any of any Event of Default unless and until written notice describing the other Security Documents (i) if such Event of Default is given by action would, in the Trustee or the Issuer and received by a Responsible Officer reasonable opinion of the Collateral Agent;
Agent (vwhich may be based on the opinion of legal counsel), be contrary to applicable law or any of the Security Documents, (ii) shall if such action is not be responsible provided for in this Security Agreement or have any duty to ascertain or inquire into of the other Security Documents, (Aiii) any statementif, warranty or representation made in or in connection with any Collateral Document, (B) the contents taking of any certificate, report such action hereunder that would constitute an exercise of remedies hereunder or other document delivered thereunder or in connection therewith, (C) the performance or observance of under any of the covenantsIndenture it shall not first be indemnified to its satisfaction by the Holders against any and all risk of nonpayment, agreements liability and expense that may be incurred by it, its agents or other terms its counsel by reason of taking or conditions set forth therein continuing to take any such action, or (iv) if, notwithstanding anything to the occurrence contrary contained in this Security Agreement, in connection with the taking of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of such action that would constitute a payment due under any Collateral Document or any other agreement, instrument agreement or document, it shall not first have received from the Holders or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered Grantors funds equal to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereofamount payable. The Collateral Agent shall hold (directly in all cases be fully protected in acting, or through in refraining from acting, under this Security Agreement or any agent) and is directed by each Holder to so holdof the other Security Documents in accordance with a request of the requisite percentage of Holders, and such request and any action taken or failure to act pursuant thereto shall be entitled to enforce on behalf of binding upon all the other Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to and the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(ek) If at The Collateral Agent shall not be deemed to have actual, constructive, direct or indirect knowledge or notice of the occurrence of any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from Default unless and until the Collateral Agent pursuant to the terms of this Indenture, has received a written notice or (ii) payments a certificate from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) Grantors stating that a Default has occurred. The Collateral Agent shall have no obligation whatsoever either prior to the Trustee or any of the Holders after receiving such notice or certificate to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or inquire whether a Default has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are in fact occurred and shall be entitled to rely conclusively, and shall be fully protected in so relying, on any particular prioritynotice or certificate so furnished to it. No provision of this Security Agreement, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, Intercreditor Agreement or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to Indenture shall require the Collateral Agent pursuant to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under this Security Agreement or the Indenture or the exercise of any Collateral Documentsof its rights or powers, if it being understood and agreed shall have reasonable grounds for believing that in respect repayment of such funds or adequate indemnity against such risk or liability including an advance of moneys necessary to perform work or to take the Collateral, or any act, omission, or event related theretoaction requested is not reasonably assured to it, the Collateral Agent may decline to act unless it receives indemnity satisfactory to it in its sole discretion, including an advance of moneys necessary to take the action requested. The Collateral Agent shall have be under no other obligation or duty or liability whatsoever to the Trustee take any action under this Security Agreement or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral other Security Documents or the security interests Indenture or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
otherwise if taking such action (i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct would subject the Collateral Agent to institute and maintaina tax in any jurisdiction where it is not then subject to a tax or (ii) would require the Collateral Agent to qualify to do business in any jurisdiction where it is not then so qualified.
(l) Any corporation into which the Collateral Agent may be merged, such suits and proceedings as or with which it may deem expedient to protect be consolidated, or enforce the Liens securing the Second Lien Obligations any corporation resulting from any merger or the Collateral Documents consolidation to which the Collateral Agent shall be a party, shall become a Collateral Agent under this Security Agreement without the execution or filing of any paper or any further act on the part of the parties hereto except for written notice to the other parties hereto.
(m) The Collateral Agent may resign as Collateral Agent at any time upon written notice to the Holders, Trustee is a party or to prevent any impairment of Collateral by any acts that and the Grantors and may be unlawful removed at any time with or without cause by holders of a majority in violation principal amount of Notes, with any such resignation or removal to become effective only upon the appointment of a successor Collateral Agent under this Section. If the Collateral Agent shall provide notice of its resignation or be removed as Collateral Agent, then a majority in principal amount of Notes shall (and if no such successor shall have been appointed within 45 days of the Collateral Documents Agent’s resignation or removal, the Intercreditor Agreements Collateral Agent may) appoint a successor Collateral Agent which successor agent shall, in the case of any appointment by the Collateral Agent, be reasonably acceptable to which the majority in principal amount of Notes, and the former Collateral Agent’s rights, powers and duties as Collateral Agent shall be terminated, without any other or further act or deed on the part of such former Collateral Agent (except that the resigning Collateral Agent shall deliver all Collateral then in its possession to the successor Collateral Agent and shall execute and deliver to the successor Collateral Agent such instruments of assignment and transfer and other similar documents as such successor Collateral Agent shall deem necessary or advisable (at the joint and several expense of the Grantors). After any retiring Collateral Agent’s resignation or removal hereunder as Collateral Agent, the provisions of this Security Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Collateral Agent. In the event that a successor Collateral Agent is not appointed within the time period specified in this Section following the provision of a notice of resignation or removal of the Collateral Agent, the Collateral Agent or Trustee is any other Secured Party may petition a party or this Indenture, and such suits and proceedings as court of competent jurisdiction for the Trustee or the appointment of a successor Collateral Agent may deem expedient to preserve or protect its interests (at the joint and the interests several expense of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral AgentGrantors).
Appears in 1 contract
Samples: Second Lien Pledge and Security Agreement (Cenveo, Inc)
Collateral Agent. (a) The Issuer Trustee, on behalf of the Secured Parties, hereby appoints Wilmington Trust, National Association, Association to act on behalf of the Secured Parties as the Collateral Agent, and the Collateral Agent under this Indenture shall have the duties, rights, indemnities, privileges, powers and each immunities of the Collateral Agent as set forth herein and in the Collateral Documents. The Collateral Agent is hereby authorized to execute and deliver the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all HoldersRegistration Rights Agreement. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documentsforegoing, the Collateral Agent shall not have be obligated to take any duties or responsibilities except those expressly set forth such action without the direction of the Holders and may, at the expense of the Company, request the direction of the Holders of a majority in this Indentureaggregate principal amount of the outstanding Notes with respect to any such actions and, upon receipt of the written consent of the Holders of a majority in aggregate principal amount of the outstanding Notes along with security and indemnity satisfactory to the Collateral Agent, shall take such actions.
(b) Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents shall be responsible or liable (i) for the legality, enforceability, effectiveness or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency, maintenance, renewal or protection of any first priority Lien, or for any defect or deficiency as to any such matters, or (ii) for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the first priority Liens or Collateral Documents to which it is party and or any delay in doing so; except, in the Intercreditor Agreements. The case of the Collateral Agent shall not be liable for any Agent, to the extent such action taken or not taken by it in the absence of its own omission constitutes gross negligence negligence, bad faith or willful misconduct (as determined by a final order of a court of competent jurisdiction in a finalthat is not subject to appeal) on the part of the Collateral Agent, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel iii) for the Trustee)validity or sufficiency of the Collateral or any agreement or assignment contained therein, independent accountants and other experts selected by itfor the validity of the title, and shall not be liable for any action taken insuring the Collateral or not taken by it in accordance with for the advice payment of any such counseltaxes, accountants charges, assessments or experts.
(b) Subject Liens upon the Collateral or otherwise as to the provisions maintenance of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this IndentureCollateral.
(c) Each Holder The rights, privileges, protections, immunities and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary benefits given to the provisions of any such intercreditor agreement or Trustee under this Indenture, including, without limitation, its right to be indemnified and compensated and all other agreements or documentsrights, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject privileges, protections, immunities and benefits set forth in all respects to the provisions thereof Section 11.01, Section 11.03, Section 11.05 and (C) agrees that the Trustee and the Collateral Agent Section 11.07, are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject extended to the Collateral DocumentsAgent, and its agents, receivers and attorneys, and shall be enforceable by, the Collateral Agent:
(i) shall not be subject , as if fully set forth in this Section 14.02 with respect to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powersthe Collateral Agent, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not only be liable for the failure to disclose, any information relating (and shall be indemnified and held harmless to the Issuer extent such Losses do not constitute) its gross negligence, bad faith or any wilful misconduct.
(d) Beyond the exercise of reasonable care in the custody of Collateral in its Affiliates that is communicated to or obtained by the person serving as possession, the Collateral Agent will have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement rights against prior parties or any other rights pertaining thereto and netiher the Collateral DocumentAgent nor the Trustee will be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any Liens on the Collateral. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to exercised reasonable care in the foregoing provisions custody of the prior paragraph Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords property held by it as a collateral agent or any similar arrangement, and shall the Collateral Agent will not be bound liable or responsible for any loss or diminution in the value of any of the Collateral by those agreements to reason of the fullest extent permitted act or omission of any carrier, forwarding agency or other agent or bailee selected by lawthe Collateral Agent in good faith.
(de) Subject The Collateral Agent shall not be required to acquire title to an asset for any reason and shall not be required to carry out any fiduciary or trust obligation for the benefit of another. The Collateral Agent is not a fiduciary and shall not be deemed to have assumed any fiduciary obligation. If the Collateral Agent in its sole discretion believes that any obligation to take or omit to take any action may cause the Collateral Agent to be considered an “owner or operator” under any environmental laws or otherwise cause the Collateral Agent to incur, or be exposed to, any environmental liability or any liability under any other federal, state or local law, the Collateral Agent reserves the right, instead of taking such action, either to resign as Collateral Agent or to arrange for the transfer of the title or control of the asset to a court appointed receiver. The Collateral Agent will not be liable to any Person for any environmental liability or any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or release or threatened discharge or release of any hazardous materials into the environment.
(f) Notwithstanding anything to the provisions of contrary herein, in any Collateral Document or in the applicable Collateral DocumentRegistration Rights Agreement, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver not be obligated to exercise its rights under the Registration Rights Agreement.
(g) The Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act Agent may resign or be replaced in accordance with the terms thereofprocedures set forth in Section 11.11 hereof, except that references to the Trustee in such section shall be deemed to be references to the Collateral Agent. The If the Collateral Agent shall hold (directly consolidates, merges or through converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any agent) and is directed by each Holder to so hold, and shall further act will be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the successor Collateral Agent.
(eh) If at any time or At all times when the entity serving as the Trustee is not itself the Collateral Agent, the Company shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect deliver to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by Trustee copies of all Collateral Documents delivered to the Trustee from Collateral Agent and copies of all documents delivered to the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Samples: Indenture (Sunedison, Inc.)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture Trustee and each of the Holders by acceptance of the Securities hereby authorize the appointment of the Collateral Agent as the Trustee’s and the Holders’ Collateral Agent under the Security Documents and Intercreditor Agreements in its capacity as mortgagee and security trustee pursuant to the Collateral Rig Mortgages, and the Trustee and each of the Holders by acceptance of the Securities hereby irrevocably authorize the Collateral Agent to enter into the Security Documents and to take such action on their behalf under the provisions of the Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Security Documents, and Wilmington Trust, National Association agrees to act together with such powers as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holdersreasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or and the Security Documents, the duties of the Collateral DocumentsAgent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth in this Indenture, the Collateral Documents to which it is party herein and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Security Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documentsparty, (B) agrees that the Liens on the Collateral securing the Obligations nor shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized have or be deemed to take have any trust or refrain from taking any actions in accordance fiduciary relationship with the terms of an Intercreditor AgreementTrustee, any Holder, the Company, any Collateral Grantor or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing and subject sentence, the use of the term “agent” in this Indenture with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom, and is continuing;
intended to create or reflect only an administrative relationship between independent contracting parties. The Trustee is authorized and directed by the Holders and the Holders by acquiring the Securities are deemed to have authorized the Trustee, as applicable, to cause the Collateral Agent to enter into and perform its obligations under the Security Documents. The Collateral Agent is authorized and directed by the Trustee and the Holders and the Holders by acquiring the Securities are deemed to have authorized the Collateral Agent, to (i) enter into the Security Documents to which it is a party, (ii) shall not have any duty to take any discretionary action or bind the Trustee and the Holders on the terms as set forth in such Security Documents and (iii) perform and observe its obligations and exercise any discretionary powers, except discretionary its rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral under such Security Documents, have any duty to discloseincluding entering into amendments, supplements and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is other modifications permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee this Indenture or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Security Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Each Holder, by its acceptance of a Security, is deemed to have consented and agreed to the Securitiesterms of each Security Document, agrees that as originally in effect and as amended, restated, replaced, supplemented or modified from time to time in accordance with its terms or the terms of this Indenture. Each of the Holders by acquiring the Securities is hereby deemed to have directed the Trustee to appoint the Collateral Agent shall execute as its mortgagee and deliver security trustee to receive, hold, administer and enforce the Collateral Documents to which it is a party and all agreementsRig Mortgages covering the Collateral Rigs, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereofas contemplated under this Indenture. The Collateral Agent shall hold (directly not be deemed to have knowledge or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf notice of the Holders on the Collateral for their benefitoccurrence of any Default or Event of Default, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from unless the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments shall have received written notice from the Collateral Agent Trustee or unless a written notice of any event which is in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with fact such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied a Default is received by the Collateral Agent pursuant at the address specified in Section 14.01, and such notice references the Securities and this Indenture. The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the terms Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Securities (subject to this Indenture and the Intercreditor Agreement.
(f) Section 12.05). The Collateral Agent shall have no obligation and makes no representation whatsoever to the Trustee or any of the Holders as to assure the existence, genuineness, value or protection of the Collateral or the sufficiency of any Security Documents, or that the Collateral exists or is owned by any Issuer or Guarantor of the Collateral Grantors or is cared for, protected, protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any GuarantorCollateral Grantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, disclosure or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral other Security Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture . The grant of permissive rights or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis powers to the Collateral Agent shall not be construed to impose duties to act. For the avoidance of doubt, nothing herein shall require the Collateral Agent to file financing statements or continuation statements, to record any documents or instruments in any public office at any time or be responsible for perfection or maintaining the perfection of the security interests purported to be created by the Security Documents and such responsibility shall be solely that of the Company. Each of the Collateral Agent and the Trustee, each in its capacity as such, includingshall not be liable or responsible for the failure of the Company or any Collateral Grantor to maintain insurance on the Collateral, without limitationnor shall it be responsible for any loss due to the insufficiency of such insurance or by reason of the failure of any insurer to pay the full amount of any loss against which it may have insured to the Company or any Collateral Grantor, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor AgreementsTrustee, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or any other Person. The provisions of Article 7, mutatis mutandis, shall apply to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent. The Holders by acquiring the Securities are deemed to have authorized the Collateral Agent, to create parallel debt obligations of any relevant Note Party as will be described in any Dutch Security Document (the “Parallel Debt”), including that an amount paid by any relevant Note Party in respect of a Parallel Debt will discharge the liability of that Note Party under the corresponding Notes Obligations.
Appears in 1 contract
Samples: Indenture (Transocean Ltd.)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees has been appointed to act as such. The provisions of this Section 13.03 are solely for the benefit Collateral Agent hereunder by Lenders and, by their acceptance of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenturebenefits hereof, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order)other Secured Parties. The Collateral Agent shall be entitled to rely uponobligated, and shall not incur have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper personrights, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement and the Credit Agreement; provided, the Collateral Agent shall, after (x) payment in full of all Obligations under the Credit Agreement and the other Credit Documents (other than contingent indemnification and reimbursement obligations for which no claim has been made) and (y) all Letters of Credit have been cancelled or have expired or have been Cash Collateralized or otherwise secured to the satisfaction of the Issuing Bank thereof, exercise, or refrain from exercising, any remedies provided for herein in accordance with the terms instructions of an Intercreditor the holders of a majority of the aggregate notional amount (or, with 103522660_5 respect to any Permitted Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such Permitted Hedge Agreement) under all Permitted Hedge Agreements, all Permitted Letters of Credit and all Permitted Cash Management Agreements. Without limiting the generality In furtherance of the foregoing and subject to the Collateral Documentsprovisions of this Section, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied dutieseach Secured Party, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request acceptance of the Trusteebenefits hereof, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating agrees that such action is permitted by the terms of the Intercreditor Agreement or it shall have no right individually to realize upon any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created exercised solely by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereofof this Section. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds give notice of Collateral or any payments with respect its resignation to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent Secured Parties and Company in excess accordance with Section 9.5 of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Credit Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Samples: Pledge and Security Agreement (Covanta Holding Corp)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth assumed by it in this IndentureAgreement, the Indenture and the Security Documents and shall not be required to take any action which is contrary to applicable law or any provision of this Agreement, the Indenture or the Security Documents. Where the Collateral Agent is permitted but not required to take any action pursuant to any Security Document, the Collateral Documents Agent may take any such action but shall have no obligation to which it is take any such action without the direction of the Directing Creditors and the Collateral Agent shall not be liable to any party and in for not taking such action if the Intercreditor AgreementsDirecting Creditors have not directed the Collateral Agent to take such action. The Collateral Agent makes no representation as to the existence, validity, value, genuineness, perfection, priority or the collectability of any security or other document or other instrument held by or delivered to the Collateral Agent. The Collateral Agent shall not be called upon to advise any party as to the wisdom in taking or refraining to take any action with respect to the Collateral.
(b) The Collateral Agent has accepted and is bound by the Security Documents delivered to it as of the date of this Agreement and, subject to this Article VI, shall accept and be bound by all Security Documents delivered to it at any time after the date of this Agreement; provided that the Collateral Agent shall not otherwise be bound by, or obligated to take cognizance of the provisions of, any agreement to which it is not a party, including any Pari Passu Lien Agreement, the Credit Agreement, or any Secured Document to which its not a party. The Collateral Agent shall not be responsible for compliance with the terms of any Security Document by any Grantor or party related thereto and shall have no duty to monitor any such compliance.
(c) The Collateral Agent may at any time solicit confirmatory instructions, including from the Directing Creditors or an order of a court of competent jurisdiction, as to any action which it may be requested or required to take, or which it may propose to take, in the performance of any of its obligations under any Security Document.
(d) The Collateral Agent shall not be responsible or liable for any action taken or not omitted to be taken by it in the absence of hereunder or under any Security Document, except for its own gross negligence negligence, bad faith or willful misconduct misconduct.
(as determined by a court of competent jurisdiction in a final, non-appealable order). e) The Collateral Agent shall be entitled to require that all agreements, certificates, opinions, instruments and other documents at any time submitted to it, including those expressly provided for in this Agreement, be delivered to it in a form and upon substantive provisions reasonably satisfactory to it.
(f) The Collateral Agent may rely upon, and shall not incur conclusively upon any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document notice or other writing document (including any electronic transmission) reasonably believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper personPerson or Persons and need not investigate any fact or matter stated in any such document. The Collateral Agent may also seek and rely upon any judicial order or judgment, upon any advice, opinion or statement made of legal counsel, independent consultants and other experts selected by it in good faith and upon any certification, instruction, notice or other writing delivered to it orally by any Grantor in compliance with the provisions of this Agreement or by telephone and believed by the other Security Documents or delivered to it to have been made by the proper personTrustee or Pari Passu Lien Agent as to Secured Parties whose action or consent is required for an instruction of Directing Creditors, and shall not incur without being required to determine the authenticity thereof or the correctness of any liability for relying thereonfact stated therein or the propriety or validity of service thereof. The Collateral Agent may consult act in reliance upon any instrument comporting with legal the provisions of this Agreement or any signature reasonably believed by it to be genuine and may assume that any Person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. To the extent an officers’ certificate or an opinion of counsel (who is required or permitted under this Agreement or any Security Document to be delivered to the Collateral Agent in respect of any matter, the Collateral Agent may rely conclusively on such officers’ certificate or opinion of counsel as to such matter. The Collateral Agent may request an opinion of counsel, a certificate of an officer of a Grantor, or both, at any time when it is required or requested to take any action hereunder or under any Security Document stating that such action is permitted or authorized pursuant to the terms hereof and of the Secured Documents and that all conditions precedent to the taking of such action have been complied with and the Collateral Agent may rely conclusively on such officer’s certificate or opinion of counsel with respect thereto. Whenever the Collateral Agent shall be counsel for required, in connection with the Trustee)exercise of its rights or the performance of its obligations hereunder, independent accountants to determine the existence or amount of any Secured Obligations, or the existence of any Lien securing any such obligations, or the Collateral subject to any such Lien, it may request that such information be furnished to it in writing by the Trustee or the Pari Passu Lien Agent, as applicable and other experts selected shall be entitled to conclusively rely on the information so furnished; provided, however, that if Trustee or the Pari Passu Lien Agent, as applicable, shall fail or refuse reasonably promptly to provide the requested information, the Collateral Agent shall be entitled, but not obligated, to make any such determination by itsuch method as it may, in the exercise of its good faith judgment, determine, including by reliance upon a certificate of the Issuer. The Collateral Agent may rely conclusively, and shall not be liable for fully protected in so relying, on any action taken or not taken determination made by it in accordance with the advice provisions of the preceding sentence (or as otherwise directed by a court of competent jurisdiction) and shall have no liability to the Grantor, any Secured Party, or any other person as a result of such counsel, accountants or expertsdetermination.
(bg) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the The Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject required to inquire as to the occurrence or absence of any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have under the Indenture, the Pari Passu Lien Agreement or any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, other Secured Document and shall not be liable for the failure affected by or required to disclose, act upon any information relating notice or knowledge as to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge occurrence of any Event of Default unless and until written it receives a notice describing such Event of Default is given by from the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty Pari Passu Lien Agent to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by lawsuch effect.
(dh) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled As to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to matter not expressly provided for by this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretoAgreement, the Collateral Agent shall have no other duty act or liability whatsoever to refrain from acting as directed by the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee Directing Creditors and shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent fully protected in its capacity as such, including, without limitation, the rights to reimbursement and indemnificationdoing so.
(i) The Collateral Agent is authorized shall not be required to advance or expend any funds or otherwise incur any financial liability in the performance of its duties or the exercise of its powers or rights hereunder unless it has been provided with security or indemnity which it, in its discretion, deems sufficient against any and empowered all liability or expense which may be incurred by it by reason of taking or continuing to appoint one take such action. The Directing Creditors hereby jointly and severally agree to provide such security or more co-indemnity to the Collateral Agents as it deems necessary or appropriateAgent promptly upon request by the Collateral Agent therefor.
(ji) Subject The Collateral Agent may resign at any time by giving not less than 45 days’ notice of resignation to the Intercreditor AgreementsTrustee, the Pari Passu Lien Agent and the Issuer, and (ii) the Collateral Agent may be removed at any time, with or without cause, pursuant to the instructions of the Directing Creditors. If the Collateral Agent on the date of this Agreement resigns at any time, the Trustee is authorized shall automatically succeed to all the rights and empowered to institute obligations of the then existing Collateral Agent and maintainthe Security Documents and shall become a successor Collateral Agent for all intents and purposes hereunder and under the Security Documents without any further action by any party.
(k) Upon the resignation or removal of the Collateral Agent, a successor Collateral Agent may be appointed by the Trustee and the Pari Passu Lien Agent, acting jointly, or direct by the instructions of the Directing Creditors, in each case with the consent (not to be unreasonably withheld) of the Issuer; provided that such consent shall not be required if the successor Collateral Agent is the Trustee or any Pari Passu Lien Agent. If no successor Collateral Agent shall have been so appointed and shall have accepted such appointment within 45 days after the retiring Collateral Agent gave notice of resignation or was removed, the retiring Collateral Agent may appoint a successor Collateral Agent, or petition at the expense of the Secured Parties a court of competent jurisdiction for appointment of a successor Collateral Agent, which shall be a bank or trust company (i) authorized to exercise corporate trust powers, (ii) acceptable to the Trustee and the Pari Passu Lien Agent, (iii) having a combined capital and surplus of at least $50,000,000 and (iv) maintaining an office in New York, New York.
(l) When the Person so appointed as successor Collateral Agent accepts such appointment:
(i) such Person shall succeed to and become vested with either all the rights, powers, privileges and duties of the predecessor Collateral Agent or such other rights, powers, privileges and duties as may be agreed in writing at the time of appointment, and upon appointment of such Person as Collateral Agent the predecessor Collateral Agent shall be discharged from its duties and obligations hereunder, and
(ii) the predecessor Collateral Agent, upon payment of all amounts owed to it, shall promptly transfer all Collateral within its possession or control to the possession or control of the successor Collateral Agent and shall execute and deliver such notices, instructions and assignments as may be necessary or desirable or reasonably requested by the successor Collateral Agent to transfer to the successor Collateral Agent all Liens, interests, rights, powers and remedies of the predecessor Collateral Agent in respect of the Collateral or under the Security Documents. Thereafter the predecessor Collateral Agent shall remain entitled to enforce the immunities granted to it in this Article VI.
(m) The Collateral Agent shall be deemed to possess all of the rights and protections provided to the Trustee under the Indenture, including without limitation all of the rights provided to the Trustee in Sections 7.01, 7.02, 7.03, 7.04 and 7.07 of the Indenture. Without limiting the generality of this Section 6.21, except as expressly set forth in this Agreement, the Collateral Agent shall have no duties or obligations to institute and maintainany Secured Parties, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing Trustee, the Second Pari Passu Lien Obligations Agent, or the holders of any Notes, Pari Passu Lien Indebtedness or any other Secured Obligation (including, without limitation, any fiduciary obligations). Each of the Trustee, the Pari Passu Lien Agent, any Secured Parties, and the holders of any Senior Secured Notes and any Pari Passu Lien Indebtedness acknowledges and agrees that (i) entering into this Agreement is an arm’s-length transaction among the parties hereto, and the parties hereto are capable of evaluating and understanding and understand and accept the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in connection with each transaction contemplated hereby and the process leading to such transaction, the Collateral Documents Agent is and has been acting solely as a principal and is not the agent or fiduciary of any of the parties hereto, the holders of any Notes or Pari Passu Lien Indebtedness or their respective affiliates, stockholders, creditors or employees or any other party; (iii) the Collateral Agent has not assumed and will not assume an advisory or fiduciary responsibility in favor of any party with respect to which any of the transactions contemplated hereby or the process leading thereto (irrespective of whether the Collateral Agent or Trustee its affiliates has advised or is a currently advising any other party on other matters) or any other obligation to prevent any impairment of Collateral by any acts that may be unlawful or party other than the obligations expressly set forth in violation of the Collateral Documents or the Intercreditor Agreements to which this Agreement; (iv) the Collateral Agent or Trustee is and its affiliates may be engaged in a party or this Indenture, broad range of transactions that involve interests that differ from those of the other parties hereto and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient has no obligation to preserve disclose any of such interests by virtue of any fiduciary or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.advisory relationship; and
Appears in 1 contract
Collateral Agent. (a) The Issuer Each Bank and the Administrative Agent ---------------- Agent hereby irrevocably appoints Wilmington Trustand authorizes, National Associationand hereby agrees that it will require any transferee of any of its interest in its Facility B Loans and in its Facility B Notes irrevocably to appoint and authorize, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements to take such actions as its agent on its behalf and to exercise such powers and perform such duties under the Security Documents as are expressly delegated to by the terms thereof, together with such powers as are reasonably incidental thereto. Neither the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders its directors, officers, employees, or agents shall have be liable for any rights as a third party beneficiary of action taken or omitted to be taken by it or them under any of the provisions contained hereinSecurity Documents or in connection therewith, except for its or their own gross negligence or willful misconduct as determined by a final non-appealable judicial order of a court of competent jurisdiction. Each Holder agrees that any action taken by the The Collateral Agent in accordance with may execute any of its duties under the provisions of this Indenture, the Intercreditor Agreement Loan Documents by or through agents or attorneys selected by it using reasonable care and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon entitled to advice of counsel concerning all Holders. Notwithstanding any provision matters pertaining to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreementssuch duties. The Collateral Agent shall not be liable responsible to any Bank for the negligence or misconduct of any action taken agents or not taken attorneys selected by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 personwith reasonable care. The Collateral Agent may also rely upon any statement made treat each Bank, or the Person designated in the last notice filed with the Administrative Agent under Section 9.3 of this Agreement, as the holder of all of the interests of such Bank in its Facility B Loans and in its Facility B Notes until written notice of transfer, signed by such Bank (or the Person designated in the last notice filed with the Administrative Agent) and by the Person designated in such written notice of transfer, in form and substance satisfactory to it orally or by telephone and believed by it to the Administrative Agent, shall have been made by filed with the proper person, and shall not incur any liability for relying thereonAdministrative Agent. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, it and shall not be liable for any action taken or not taken suffered by it in accordance with good faith in reliance thereon. The Collateral Agent shall not be under any duty to examine, inquire into, or pass upon the advice validity, effectiveness, or genuineness of any such counselSecurity Document or other document, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documentscommunication furnished pursuant thereto or in connection therewith, the Trustee and the Collateral Agent shall be entitled to assume that they are authorized valid, effective, and empowered genuine, have been signed or sent by the proper parties, and are what they purport to receive for the benefit of the Holders be. The Collateral Agent shall be entitled to use its discretion with respect to exercising or refraining from exercising any funds collected rights which may be vested in it by, and with respect to taking or distributed refraining from taking any action or actions which it may be able to take under the Collateral Documents and Intercreditor Agreements to which or in respect of, any Security Document, unless the Collateral Agent shall have been instructed by the Required Lenders to exercise or Trustee is a party and to make further distributions of refrain from exercising such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement rights or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documentssuch action, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement provided that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, exercise any information relating to the Issuer or rights under any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at Security Document without the request of the TrusteeRequired Lenders unless time is of the essence, (B) in which case, such action can be taken. The Collateral Agent shall incur no liability under or in respect of any Security Document with respect to anything which it may do or refrain from doing in the absence reasonable exercise of its own judgment or which may seem to it to be necessary or desirable in the circumstances, except for its gross negligence or willful misconduct or (C) in reliance on as determined by a certificate final, non-appealable judicial order of an authorized officer a court of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Documentcompetent jurisdiction. The Collateral Agent shall not be deemed liable to the Banks or to any Bank in acting or refraining from acting under any Security Document in accordance with the instructions of the Required Lenders, and any action taken or failure to act pursuant to such instructions shall be binding on all Banks. The Collateral Agent shall not be obligated to have actual knowledge of take any Event of Default unless and until written notice describing such Event of Default action which is given by contrary to law or which would in its reasonable opinion subject it to liability. All indemnity provisions herein that pertain to the Trustee or the Issuer and received by a Responsible Officer of Administrative Agent shall apply equally to the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) . Each Bank and the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) Administrative Agent hereby agree that the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported Obligations are to be created secured pari passu with all "Obligations"@ ---- ----- under the ATS Facility A Loan Agreement and that all Collateral now or hereafter delivered as security for the Obligations shall be held by the Collateral Documents, Agent (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi, if received by any Bank) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Security Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture Trustee and each of the Holders, by its acceptance of the Notes, hereby designate and appoint the Collateral Agent as their agent under this Indenture, the Collateral Documents and the Intercreditor Agreements Agreement, and the Trustee and each of the Holders, by its acceptance of the Notes, hereby irrevocably authorize the Collateral Agent to take such action on their behalf under the provisions of this Indenture, the Collateral Documents and the Intercreditor Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture Indenture, the Collateral Documents and the Intercreditor Agreement and consent and agree to the terms of the Intercreditor Agreement and each Collateral DocumentsDocument, and Wilmington Trustas the same may be in effect or may be amended, National Association restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as suchsuch on the express conditions contained in this Section 10.06. The provisions of this Section 13.03 10.06 are solely for the benefit of the Collateral Agent Agent, and neither none of the Trustee Trustee, the Holders nor any of the Holders Grantors shall have any rights as a third party beneficiary of any of the provisions contained hereinherein other than as expressly provided in Section 10.03. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions provision of this Indenture, the Intercreditor Agreement and the Collateral Documents, Documents and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or Indenture, the Collateral DocumentsDocuments and the Intercreditor 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 responsibilities, except those expressly set forth herein and in the other Indenture Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents to which it is party and in the Intercreditor AgreementsAgreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents or the Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, 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 taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the negligence of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made with due care.
(c) None of the Collateral Agent or any of its respective 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 Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct) or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture or any other Indenture Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Indenture, the Collateral Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents or the Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents or the Intercreditor Agreement or to inspect the properties, books or records of any Grantor or any Grantor’s Affiliates.
(d) The Collateral Agent shall be entitled to conclusively rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, facsimile, certification, telephone message, statement or other communication, document or conversation (including those by telephone or electronic mail) believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document. Before the Collateral Agent acts or refrains from acting at the request or direction of the Issuer or a Guarantor as expressly provided in a Collateral Document or the Intercreditor Agreement, it may require an Officer’s Certificate and an Opinion of Counsel. The Collateral Agent shall not be liable for any action taken it takes or not taken by it omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. Subject to the absence terms of its own gross negligence the Collateral Documents and the Intercreditor Agreement, in each other case that the Collateral Agent may or willful misconduct is required hereunder or under any other Indenture Document to take any action (as determined by an “Action”), including without limitation to make any determination, to give consents, to exercise rights, powers or remedies, to release or sell Collateral or otherwise to act hereunder or under any other Indenture Document, the Collateral Agent may seek direction from the Holders of a court majority in aggregate principal amount of competent jurisdiction in a final, non-appealable order)the then outstanding Notes. 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for with respect to any action Action taken or not omitted to be taken by it in accordance with the advice direction from the Holders of any such counsel, accountants or experts.
(b) a majority in aggregate principal amount of the then outstanding Notes. Subject to the provisions terms of the Intercreditor Agreements and the Collateral Documents, if the Trustee Collateral Agent shall request direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes with respect to any Action, the Collateral Agent shall be entitled to refrain from such Action unless and until the Collateral Agent shall have received direction and indemnity satisfactory to it from the Holders of a majority in aggregate principal amount of the then outstanding Notes, and the Collateral Agent are authorized and empowered shall not incur liability to receive for the benefit any Person by reason of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indentureso refraining.
(ce) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall not be deemed not to have actual knowledge or notice of the occurrence of any Default or Event of Default Default, unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) Agent shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) received written notice from the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein Trustee or the occurrence of any Issuer referring to this Indenture, describing such Default or Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph Default and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees stating that the Collateral Agent shall execute and deliver the Collateral Documents to which it such notice is a party and all agreements, power “notice of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. default.” The Collateral Agent shall hold (directly take such action with respect to such Default or through any agent) and is directed Event of Default as may be requested by each Holder to so hold, and shall be entitled to enforce on behalf the Trustee in accordance with Article 7 or the Holders of a majority in aggregate principal amount of the Holders on the Collateral for their benefit, Notes (subject to this Section 10.06 and the provisions terms of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent).
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Samples: Indenture (Intl Fcstone Inc.)
Collateral Agent. (a) The Issuer hereby appoints Wilmington TrustTrustee shall initially act as Collateral Agent and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreement, National Association, to act on behalf of the Secured Parties as neither the Collateral Agent under this Indenture and each nor any of its respective officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral Documents and Intercreditor Agreements and or for any delay in doing so or shall be under any obligation to exercise such powers and perform such duties as are expressly delegated sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor or any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order)part thereof. The Collateral Agent shall be entitled to rely uponaccountable only for amounts that it actually receives as a result of the exercise of such powers, 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 neither the proper person. The Collateral Agent may also rely upon nor any statement made to it orally of its officers, directors, employees or by telephone and believed by it to have been made by the proper person, and agents shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable responsible for any action taken act or not taken by it in accordance with the advice of any such counselfailure to act hereunder, accountants except for its own willful misconduct, gross negligence or expertsbad faith.
(b) Subject to the provisions of the Intercreditor Agreements and the The Trustee, as Collateral DocumentsAgent, the Trustee and the Collateral Agent are is authorized and empowered directed to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied dutiesenter into the Security Documents, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powersenter into the Intercreditor Agreement, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except bind the Holders on the terms as expressly set forth in the Collateral Documents, have any duty to disclose, Security Documents and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
Intercreditor Agreement and (iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of perform and observe its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor obligations under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture Security Documents and the Intercreditor Agreement.
(fc) The Collateral Agent shall have If the Issuers (i) Incur First-Priority Lien Obligations at any time when no obligation whatsoever intercreditor agreement is in effect or at any time when Indebtedness constituting First-Priority Lien Obligations entitled to the Trustee or any benefit of the Holders to assure that the Collateral exists or an existing Intercreditor Agreement is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authoritiesconcurrently retired, and powers granted or available (ii) delivers to the Collateral Agent pursuant an Officers’ Certificate so stating and requesting the Collateral Agent to this Indenture enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement in effect on the Issue Date) in favor of a designated agent or any Collateral Documents, it being understood and agreed that in respect representative for the holders of the Collateral, or any act, omission, or event related theretoFirst-Priority Lien Obligations so Incurred, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is hereby authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(jdirected to) Subject to the Intercreditor Agreementsenter into such intercreditor agreement, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of bind the Holders in on the Collateral, including power to institute terms set forth therein and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agentperform and observe its obligations thereunder.
Appears in 1 contract
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Indenture, the Collateral Documents and each Intercreditor Agreements Agreement, and the Issuer and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Collateral Documents and each Intercreditor Agreement, and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and Indenture, the Collateral DocumentsDocuments and each Intercreditor Agreement, and Wilmington Trustconsents and agrees to the terms of each Intercreditor Agreement and each Collateral Document, National Association as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as such. The provisions of such on the express conditions contained in this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein12.7. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the each Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or Indenture, the Collateral DocumentsDocuments and each Intercreditor 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 responsibilities, except those expressly set forth herein and in the Collateral Documents and each Intercreditor Agreement, to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents to which it is party and in the each Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken Agreement, or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and otherwise exist against the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor AgreementAgent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and subject is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Collateral Agent:Pari Passu Intercreditor Agreement and any Acceptable Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates
(i) 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 taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be subject to responsible for the negligence or misconduct of any fiduciary receiver, agent, employee, attorney-in-fact or other implied duties, regardless of whether an Event of Default has occurred Related Person that it selects as long as such selection was made in good faith and is continuing;with due care.
(iic) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the The Collateral Agent is required shall be entitled to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to discloserely, and shall not be liable for 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 failure to discloseproper Person or Persons, any information relating and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any of its Affiliates that is communicated to or obtained other Grantor), independent accountants and other experts and advisors selected by the person serving as the Collateral Agent. The Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for bound to make any action taken investigation into the facts or not taken by it (A) with the consent matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or at the request of the Trustee, (B) in the absence of its own gross negligence other paper or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Documentdocument. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or any Acceptable Intercreditor Agreement unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Document, the Pari Passu Intercreditor Agreement or any Acceptable Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(d) [Reserved]
(e) The Collateral Agent shall not be deemed not to have actual knowledge or notice of the occurrence of any Default or Event of Default Default, unless and until a Trust Officer of the Collateral Agent shall have received written notice describing such Event of Default is given by from the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for referring to this Indenture, describing such Default or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph Default and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees stating that the Collateral Agent shall execute and deliver the Collateral Documents to which it such notice is a party and all agreements, power “notice of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. default.” The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct such action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, such Default or relating to, this Indenture, except for any such proceeds or payments received Event of Default as may be requested by the Trustee from in accordance with Article VI or the Collateral Agent pursuant to the terms Holders of this Indenture, or (ii) payments from the Collateral Agent a majority in excess aggregate principal amount of the amount required Notes (subject to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor AgreementSection 12.7).
(f) The Collateral Agent shall have no obligation whatsoever may resign at any time by 30 days’ written notice to the Trustee or any and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral Agent resigns under this Indenture, the Issuer shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent (as stated in the notice of resignation), the Trustee, at the direction of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of a majority of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any aggregate principal amount of the rightsNotes then outstanding, authoritiesmay appoint a successor collateral agent, and powers granted or available subject to the Collateral Agent consent of the Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default). If no successor collateral agent is appointed and consented to by the Issuer pursuant to this Indenture or any Collateral Documents, it being understood and agreed that the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in respect the notice of the Collateral, or any act, omission, or event related thereto, resignation) the Collateral Agent shall have no other duty 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. If the Collateral Agent consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor Collateral Agent. After the retiring Collateral Agent’s resignation hereunder, the provisions of this Section 12.7 (and Section 7.7 hereof) shall continue to inure to its benefit and the retiring Collateral Agent shall not by reason of such resignation be deemed to be released from liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything actions taken or omitted to the contrary in this Indenture or any Collateral Document, neither be taken by it while it was the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or under this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Samples: Indenture (MICROSTRATEGY Inc)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf 14.1 By their execution of the Secured Parties as Omnibus Signature Page to the Purchase Agreement and this Agreement, each of the Noteholders have agreed to appoint a Collateral Agent upon an Event of Default and hereby authorize the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent Noteholders all rights, powers and neither remedies provided to it under or pursuant to this Agreement, including all rights, powers and remedies upon an Event of Default, subject always to the Trustee nor any of the Holders shall have any rights terms, conditions, limitations and restrictions provided in this Agreement. Except with respect to those matters as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by to which the Collateral Agent in accordance with is expressly required to act under the provisions terms of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral DocumentsArticle XIV, the Collateral Agent may act or refrain from acting with the written consent of the Requisite Holders, which Requisite Holders shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Collateral Agent; provided, however, that such direction shall not be in conflict with any rule of law or expose the Collateral Agent to personal liability, and the Collateral Agent may take any action deemed proper by the Collateral Agent, in its discretion, which is not inconsistent with such direction or the terms of this Agreement.
14.2 The Collateral Agent shall have any no duties or responsibilities except those expressly set forth in this Indenture, Agreement. Neither the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent nor any of its partners, members, shareholders, officers, directors, employees or agents shall not be liable for any action taken or not taken omitted by it as such under the Agreement or hereunder or in connection herewith or therewith, be responsible for the absence consequence of any oversight or error of judgment or answerable for any loss, unless caused by its own or their gross negligence or willful misconduct (as determined by a final judgment (not subject to further appeal) of a court of competent jurisdiction in a final, non-appealable order)jurisdiction. The duties of the Collateral Agent shall be entitled to rely upon, mechanical 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it administrative in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and nature; the Collateral Agent are authorized and empowered to receive for the benefit shall not have by reason of the Holders Agreement or any funds collected other transaction document a fiduciary relationship in respect of any Grantor or distributed under any Noteholder; and nothing in the Collateral Documents and Intercreditor Agreements Agreement or any other transaction document, expressed or implied, is intended to which or shall be so construed as to impose upon the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject obligations in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality respect of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to Agreement or any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, transaction document except as expressly set forth in the Collateral Documents, have any duty to disclose, herein and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by lawtherein.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Samples: Security Agreement (BeesFree, Inc.)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, all the Collateral Documents to which it is party rights and protections provided in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or expertsSecurity Documents.
(b) Subject to Section 7.01, neither the provisions Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Intercreditor Agreements Security Documents, for obtaining or maintaining insurance on any Collateral, for the creation, perfection, priority, sufficiency or protection of any Second Priority Lien, or any defect or deficiency as to any such matters. Beyond the exercise of reasonable care in the custody thereof, the Trustee shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Collateral DocumentsTrustee, in its capacity as such, shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any Lien on the Collateral. The Trustee and the Collateral Agent are authorized and empowered shall be deemed to receive for have exercised reasonable care in the benefit custody of the Holders any funds collected or distributed under Collateral in its possession if the Collateral Documents is accorded treatment equal to that which it accords its own property and Intercreditor Agreements to which shall not be liable or responsible for any loss or diminution in the Collateral Agent value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenturein good faith.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary Subject to the provisions of any such intercreditor agreement or other agreements or documentsSecurity Documents and the Intercreditor Agreement, (Bi) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and shall direct the Collateral Agent are authorized to take and (ii) except as directed by the Trustee, as required or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject permitted by this Indenture or pursuant to the Collateral Security Documents, the holders acknowledge that Collateral AgentAgent will not be obligated:
(i1) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien act upon directions purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; andit by any other Person;
(vi2) shall not be responsible to foreclose upon or liable for creating, preserving, perfecting otherwise enforce any Second Priority Lien; or
(3) to take any other action whatsoever with regard to any or validating the security interest granted to the Collateral Agent for the benefit all of the Secured Parties pursuant to the Collateral Second Priority Liens, Security Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by lawCollateral.
(d) Subject to the provisions The holders of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees Notes agree that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on rights, privileges, protections, immunities, indemnities and benefits provided to the Collateral for their benefit, subject to Agent by the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Security Documents. The Holders may only act Furthermore, each holder of a Note, by written instruction to the Trusteeaccepting such Note, subject consents to the terms hereof, which shall instruct of and authorizes and directs the Trustee (in each of its capacities) and the Collateral AgentAgent to enter into and perform the Intercreditor Agreement and Security Documents in each of its capacities thereunder.
(e) If the Issuers (i) Incur First Priority Lien Obligations in compliance with this Indenture at any time when the Intercreditor Agreement is not in effect or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, at any proceeds of Collateral or any payments with respect time when Indebtedness constituting First Priority Lien Obligations entitled to the Obligations arising underbenefit of an existing intercreditor agreement is concurrently retired, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or and (ii) payments from the Collateral Agent in excess of the amount required to be paid to direct the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same deliver to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture an Officer’s Certificate so stating and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct requesting the Collateral Agent to institute and maintain, such suits and proceedings enter into an intercreditor agreement (on substantially the same terms as it may deem expedient to protect the Intercreditor Agreement in effect on the Issue Date) in favor of a designated agent or enforce representative for the Liens securing holders of the Second First Priority Lien Obligations or so Incurred, the Collateral Documents to which holders acknowledge that the Collateral Agent or Trustee is a party or hereby authorized and directed to prevent any impairment of Collateral by any acts that may be unlawful or in violation of enter into such intercreditor agreement, bind the Collateral Documents or holders on the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, terms set forth therein and such suits perform and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect observe its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agentobligations thereunder.
Appears in 1 contract
Samples: Indenture (Vici Properties Inc.)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Indenture, the Collateral Documents and the Intercreditor Agreements Agreement and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Collateral Documents and the Intercreditor Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture Indenture, the Collateral Documents and the Collateral DocumentsIntercreditor Agreement, and Wilmington Trustconsents and agrees to the terms of the Intercreditor Agreement and each Collateral Document, National Association as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as suchsuch on the express conditions contained in this Section 12.9. The provisions of this Section 13.03 12.9 are solely for the benefit of the Collateral Agent and neither none of the Trustee Trustee, any of the Holders nor any of the Holders Grantors shall have any rights as a third party beneficiary of any of the provisions contained hereinherein other than as expressly provided in Section 12.4. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions provision of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or Indenture, the Collateral DocumentsDocuments and the Intercreditor 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 responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken Agreement or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and otherwise exist against the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor AgreementAgent. Without limiting the generality of the foregoing and subject sentence, the use of the term “agent” in this Indenture with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom, and is continuing;intended to create or reflect only an administrative relationship between independent contracting parties.
(iib) shall not have The Collateral Agent may perform any duty to take any discretionary action or exercise any discretionary powersof its duties under this Indenture, except discretionary rights and powers expressly contemplated by the Collateral Documents or the Intercreditor Agreement that by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the Collateral Agent is required respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates, (a “Related Person”) and shall be entitled to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty advice of counsel concerning all matters pertaining to disclosesuch duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be liable responsible for the failure to disclosenegligence or willful misconduct of any receiver, any information relating to the Issuer agent, employee, attorney-in-fact or any Related Person that it selects as long as such selection was made in good faith.
(c) None of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
respective Related Persons shall (ivi) shall not be liable for any action taken or not omitted to be taken by it any of them under or in connection with this Indenture or the transactions contemplated hereby (A) with the consent or at the request of the Trustee, (B) in the absence of except for its own gross negligence or willful misconduct misconduct) or (C) under or in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of connection with any Collateral Document or the Intercreditor Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuer any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral DocumentAgent under or in connection with, this Indenture, the Collateral Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents or the Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents or the Intercreditor Agreement to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents or the Intercreditor Agreement or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) 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 or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents or the Intercreditor Agreement unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e) The Collateral Agent shall not be deemed not to have actual knowledge or notice of the occurrence of any Default or Event of Default Default, unless and until a Trust Officer of the Collateral Agent shall have received written notice describing such Event of Default is given by from the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for referring to this Indenture, describing such Default or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph Default and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees stating that the Collateral Agent shall execute and deliver the Collateral Documents to which it such notice is a party and all agreements, power “notice of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. default.” The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct such action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, such Default or relating to, this Indenture, except for any such proceeds or payments received Event of Default as may be requested by the Trustee from in accordance with Article VI or the Collateral Agent pursuant to the terms Holders of this Indenture, or (ii) payments from the Collateral Agent a majority in excess aggregate principal amount of the amount required Notes (subject to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor AgreementSection 12.9).
(f) The Collateral Agent shall have no obligation whatsoever may resign at any time by notice to the Trustee or any and the Issuer, such resignation to be effective upon the acceptance of the Holders a successor agent to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the its appointment as Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to . If the Collateral Agent pursuant resigns under this Indenture, the Issuer shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to this Indenture or any Collateral Documents, it being understood and agreed that in respect the intended effective date of the Collateral, or any act, omission, or event related theretoresignation of the Collateral Agent (as stated in the notice of resignation), the Collateral Agent shall have no other duty or liability whatsoever may appoint, after consulting with the Trustee, subject to the Trustee or any Holder consent of the Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Collateral Agent shall be entitled to 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 Section 12.9 (and Section 7.7) 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 of the foregoing.
(g) Notwithstanding anything actions taken or omitted to the contrary in this Indenture or any Collateral Document, neither be taken by it while it was the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or under this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Samples: Indenture (Essar Steel Canada Inc.)
Collateral Agent. (a) The Issuer Each Lender hereby appoints Wilmington Trustirrevocably appoints, National Association, to act on behalf designates and authorizes Bank of the Secured Parties America as the Collateral Agent under this Indenture the Intercreditor Agreement and each of the Collateral Documents and Intercreditor Agreements and to exercise with such powers and perform such duties as are expressly delegated specifically granted to the Collateral Agent by the terms of this Indenture thereof, together with such other powers as are reasonably incidental thereto, and expressly authorizes the Collateral Agent as its agent to execute, deliver and perform the Collateral Documents and the Collateral Documents, Intercreditor Agreement and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of Collateral Agent under the Collateral Agent Documents (subject to and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this IndentureIntercreditor Agreement), and the Intercreditor Agreement and Bank of America, in its individual capacity, accepts such appointment as Collateral Agent thereunder by executing the Collateral DocumentsBorrowers Pledge Agreement, and the exercise which appointment is coupled with an interest. Each Lender hereby agrees to be bound by the Collateral Agent provisions of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. the Intercreditor Agreement applicable to a "Lender" therein.
(b) Notwithstanding any provision to the contrary contained elsewhere in this Indenture Agreement or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth in this IndentureSection 11, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Agreement, nor shall Collateral Agent shall not have or be liable for deemed to have any action taken fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). The Collateral Agent liabilities shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document read into this Agreement or other writing believed by it to be genuine and to have been signed or sent by the proper person. The otherwise exist against Collateral Agent may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor AgreementAgent. Without limiting the generality of the foregoing and subject to sentence, the use of the term "agent" in the Collateral Documents, the Documents with reference to Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom, and is continuing;intended to create or reflect only an administrative relationship between independent contracting parties.
(iic) shall not have Collateral Agent may execute any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by of its duties under the Collateral Documents or and the Intercreditor Agreement that the by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable responsible for the failure to disclose, negligence or misconduct of any information relating to the Issuer agent or any of its Affiliates attorney-in-fact that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;it selects with reasonable care.
(ivd) None of Collateral Agent-Related Persons (defined below) shall not (i) be liable for any action taken or not omitted to be taken by it (A) any of them under or in connection with the consent Collateral Documents or at the request of Intercreditor Agreement or the Trustee, transactions contemplated thereby (B) in the absence of except for its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenturemisconduct), or (ii) payments from the be responsible in any manner to any of Lenders for any recital, statement, representation or warranty made by Borrowers or any Subsidiary or Affiliate of Borrowers, or any officer thereof, contained in this Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by Collateral Agent under or in excess of the amount required to be paid to the Trustee pursuant to Article 5connection with, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the validity, effectiveness, genuineness, validity, marketability enforceability or sufficiency thereof or title theretoof this Agreement, or for any failure of Borrowers or any other party to exercise at all any Loan Document to perform their obligations hereunder or in any particular manner or thereunder. No Collateral Agent-Related Person shall be under any duty of care, disclosure, or fidelity, obligation to any Lender to ascertain or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.124
Appears in 1 contract
Samples: Credit Agreement (Apartment Investment & Management Co)
Collateral Agent. (ai) The Issuer Etico Capital, LLC is hereby appoints Wilmington Trustappointed Collateral Agent under the Security Documents and each Buyer hereby authorizes Etico Capital, National AssociationLLC, in such capacity, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by its agent in accordance with the terms of the Security Documents and this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as suchAgreement. The provisions of this Section 13.03 4(r) are solely for the benefit of the Collateral Agent Buyers and neither the Trustee nor any of the Holders Company and its Affiliates shall not have any rights as a third party beneficiary of any of the provisions contained hereinthereof. Each Holder agrees that any action taken by In performing its functions and duties under the Security Documents and this Agreement, the Collateral Agent shall act solely as an agent of Buyers and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with the Company or any of its Affiliates. The Collateral Agent shall be obligated, and shall have the powers and rights, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of Collateral), solely in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Security Documents. If any provision, and duty, obligation or right under the exercise by the Security Documents is in conflict with any provision, duty, obligation or right under this Agreement then this Agreement shall control. The Collateral Agent of shall not have any rights duties or remedies responsibilities, except those expressly set forth herein and therein in the Security Documents and such powers as are incidental thereto.
(ii) Each Buyer irrevocably authorizes the Collateral Agent to take such action on such Buyer’s behalf and to exercise such powers, rights and remedies hereunder as are specifically delegated or granted to the Collateral Agent by the terms of this Agreement and the Security Documents, together with such powers, rights and remedies as are reasonably incidental thereto. The Collateral Agent shall be authorized have only those duties and binding upon all Holdersresponsibilities that are expressly specified herein and therein. The Collateral Agent may exercise such powers, rights and remedies and perform such duties by or through its agents or employees. Notwithstanding any other provisions hereof or of any provision to of the contrary contained elsewhere in this Indenture or the Collateral Security Documents, the Collateral Agent shall not have or be deemed to have any duties fiduciary relationship with the Buyers or responsibilities except those expressly set forth any other person or entity, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or the Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture, Agreement or the Security Documents with reference to the Collateral Documents Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law.
(iii) The Collateral Agent may act in reliance upon any writing or instrument or signature which it is party it, in good faith, believes to be genuine, and may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument and may assume that any person or entity purporting to give any writing, notice, advice or instruction in connection with the Intercreditor Agreementsprovisions hereof has been duly authorized to do so. The Collateral Agent may consult with counsel and shall be entitled to act, and shall be fully protected in any action taken in good faith, in accordance with advice given by counsel. The Collateral Agent shall not be liable to the Company or any of its Affiliates, or the Buyers for any recitals or warranties herein or in the Security Documents, nor for the effectiveness, enforceability, validity or due execution of the Security Documents or any other agreement, document or instrument, nor to make any inquiry respecting the performance by any party of their respective obligations thereunder. Any such inquiry which may be made by the Collateral Agent shall not obligate it to make any further inquiry or to take any action.
(iv) The Collateral Agent shall not be required to take any action taken or not taken by which, in the Collateral Agent’s sole and absolute judgment, could involve it in expense or liability unless furnished with security and indemnity which it deems, in its sole and absolute discretion, to be satisfactory. In the absence event the Collateral Agent receives conflicting instructions hereunder or under any of the Security Documents, the Collateral Agent shall be fully protected in refraining from acting until such conflict is resolved to the satisfaction of the Collateral Agent. Neither the Collateral Agent nor any of its own directors, officers, employees or agents shall be liable, except for the Collateral Agent’s bad faith, gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction for any action taken or omitted under or in connection with this Agreement, the Security Documents or any other instrument or document in connection herewith or therewith.
(v) The Company, its Subsidiaries and the Buyers jointly and severally hereby agree to indemnify the Collateral Agent, its directors, officers, employees and agents (collectively, the “Indemnified Parties”), and hold the Indemnified Parties harmless from any and against all liabilities, losses, actions, suits or proceedings at law or in equity, and any other expenses, fees or charges of any character or nature, including, without limitation, attorney’s fees and expenses, which an Indemnified Party may incur or with which it may be threatened by reason of acting as or on behalf of the Collateral Agent under this Agreement or the Security Documents, except to the extent the same shall be caused by the Collateral Agent’s bad faith, gross negligence or willful misconduct as finally determined by a finalcourt of competent jurisdiction. The Collateral Agent shall not be required to take any action hereunder or under the Security Documents, non-appealable orderor to prosecute or defend any suit in respect of this Agreement or the Security Documents, unless it is indemnified thereunder to its satisfaction. If any indemnity in favor of the Collateral Agent shall be or become, in its determination, inadequate, the Collateral Agent may call for additional indemnification from the Company, such Subsidiaries and the Buyers and/or cease to do the acts indemnified against hereunder until such additional indemnity is given. The terms of this clause (vi) shall survive termination of this Agreement.
(vi) The Collateral Agent may resign or be removed by the Buyers (by a vote of the holders of a majority of the outstanding principal of the Notes) as Collateral Agent hereunder at any time upon at least thirty (30) days’ prior notice. If the Collateral Agent at any time shall resign, the Buyers shall (by a vote of the holders of a majority of the outstanding principal of the Notes), within ten (10) days after such notice appoint a successor Collateral Agent which shall thereupon become the Collateral Agent hereunder and under the Security Documents. If no successor Collateral Agent shall have been so appointed, and shall have accepted such appointment, within the above time frame the retiring Collateral Agent may appoint a successor. Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, such successor Collateral Agent shall be entitled to receive from the retiring Collateral Agent such documents of transfer and assignment as such successor Collateral Agent may reasonably request, and shall thereupon succeed to and become vested with all rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations under this Agreement. After the effective date of any retiring Collateral Agent’s resignation hereunder as collateral agent, the provisions of this section shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Collateral Agent under this Agreement.
(vii) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any default or Event of Default unless the Collateral Agent has received a copy of a notice thereof from a Buyer referring to this Agreement and describing such default or Event of Default. In the event that the Collateral Agent receives such a notice, the Collateral Agent shall promptly give notice thereof to the other Buyers and to the Company. The Collateral Agent shall be entitled permitted to rely upon, take such action with respect to any default or Event of Default as provided in this Agreement 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or expertsSecurity Documents.
(bviii) Subject to the provisions Each Buyer, by its acceptance of the Intercreditor Agreements benefits hereof and of the Collateral Security Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take shall have no actions contrary right individually to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of realize upon any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to it being understood and agreed by each Buyer that all rights and remedies may be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to exercised solely by the Collateral Agent for the benefit of the Secured Parties pursuant Buyer in accordance with the provisions of this Agreement and the Security Documents in the Collateral Agent’s sole and absolute discretion.
(ix) Upon any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to its creditors upon any dissolution or winding-up or total or partial liquidation or reorganization of the Pledgor, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings including, without limitation, all amounts received by the Collateral Agent on behalf of the Buyers, or received by the Buyers, shall be paid by the in accordance with its outstanding secured Obligations to each of the Buyers in accordance with clause (xiii) below. Any and all amounts referred to in this clause (x) or any other amounts or proceeds of collateral received by any of the Buyers shall be held in trust for the benefit of all of the Buyers, shall be immediately delivered by the applicable Buyers to the Collateral Documents or any lien and/or any filingAgent in the amount and form received, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to apportioned, paid over or delivered among the fullest extent permitted by lawBuyers in accordance with clause (xii) of this Agreement.
(dx) Subject to Except as provided by law, the provisions security interests in the Collateral shall be for the ratable benefit of the applicable Collateral DocumentBuyers and the holders of outstanding debt listed on Schedule 3(s) hereto, each Holdershall rank equally in priority, none being senior or subordinate to any other. No Buyer shall contest the validity, perfection, priority or enforceability of the lien of any other Buyer in the Collateral. Each Buyer, by its acceptance of the Securitiesbenefits hereof, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever right individually to the Trustee or realize upon any of the Holders Collateral under this Agreement, the Security Documents, pursuant to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protectedapplicable law, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documentsotherwise, it being understood and agreed by each Buyer that in respect of all rights and remedies under this Agreement, the CollateralSecurity Documents, pursuant to applicable law, or any actotherwise, omission, or event related thereto, may be exercised solely by the Collateral Agent for the benefit of Buyers in accordance with the provisions of this Agreement and the Security Documents.
(xi) Upon any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding-up or total or partial liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings (each such payment, distribution and/or amount is hereafter referred to as a “Collateral Proceeds Amount”), shall have no be disbursed in accordance with clause (xii) below.
(xii) Any and all Collateral Proceeds Amount and any other duty amounts or liability whatsoever to the Trustee or any Holder as to proceeds of Collateral received by any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee Buyers shall be responsible for, and neither makes any representation regarding, held in trust for the validity, effectiveness or priority benefit of any all of the Collateral Documents or Buyers, shall be immediately delivered by the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis Buyer to the Collateral Agent in its capacity as suchthe amount and form received, includingand, without limitation, subject to the rights to reimbursement and indemnification.
any of the Collateral Proceeds Amount or such other amounts or proceeds of Collateral of the holders of the other security interests in the Collateral referred to in clause (ix) The Collateral Agent is authorized and empowered above, shall be apportioned, paid over or delivered as follows: first, to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute for the payment or reimbursement of any expenses and maintainfees of, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which any other amount payable to, the Collateral Agent hereunder or Trustee is under the Security Documents, and next, among the Buyers on a party or pro rata basis to prevent any impairment of Collateral by any acts that may be unlawful or each in violation accordance with the Company’s outstanding obligations to each of the Collateral Documents or the Intercreditor Agreements Buyers which are secured pursuant to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral AgentAgreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Applied Dna Sciences Inc)
Collateral Agent. (a) The Issuer Xxxxx hereby appoints Wilmington Trustthe Agent as its agent for the purpose of holding the Collateral, National Association, to act on behalf or so much of it as is in or may come into the possession of the Secured Parties as Agent, pursuant to the Collateral Agent under this Indenture and each lien of the security interests granted under the Xxxxx Security Documents. The Agent hereby accepts such appointment and agrees to receive, hold, liquidate, disburse, release and otherwise deal with such Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, proceeds and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent products thereof which may come into its possession in accordance with the provisions of Xxxxx Security Documents and this Indenture, the Intercreditor Agreement and the to pay over to Xxxxx any such Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holdersproceeds to which Xxxxx is entitled under Section 9 hereof. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral The Agent shall not have any no duties or responsibilities as agent of Xxxxx except those expressly set forth in herein, and shall not, by reason of this IndentureAgreement, have a fiduciary relationship with Xxxxx, and no implied covenants, responsibilities, duties, obligations or liabilities shall be read into this Agreement or shall otherwise exist against the Collateral Documents to which it is party and in Agent. Neither the Intercreditor Agreements. The Collateral Agent nor any of its directors, officers, agents, or employees shall not be liable to Xxxxx for any action taken or not taken by it in the absence or them as agent of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) Xxxxx hereunder with the consent or at the request of the Trustee, (B) Xxxxx or in the absence of its or their own gross negligence or willful misconduct misconduct. Neither the Agent nor any of its directors, officers, agents, or (C) employees shall incur any liability by acting in reliance on upon any notice, consent, certificate, statement, or other writing (which may be a certificate of an authorized officer bank wire, telex, telecopy, or similar writing) believed by it to be genuine or to be signed by the proper party or parties. Xxxxx agrees to indemnify and hold harmless the Agent (to the extent not reimbursed by the Borrower, but without limiting any obligation of the Issuer stating Borrower to make such reimbursement) against any and all claims, damages, losses, liabilities, costs or expenses arising out of its actions as agent under this Section 8; PROVIDED, HOWEVER, that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) Xxxxx shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creatingany portion of such claims, preservingdamages, perfecting losses, liabilities, costs or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee expenses resulting from the Collateral Agent pursuant to the terms Agent's breach of its obligations under this Indenture, Agreement or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreementits gross negligence or willful misconduct.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf Trustee and each of the Secured Parties as Holders by acceptance of the Notes hereby acknowledge the Company’s appointment of the Collateral Agent as the Trustee’s and the Holders’ collateral agent under this Indenture and the Security Documents, and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorize the Collateral Agent to take such action on their behalf under the provisions of this Indenture and the Security Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Security Documents, and Wilmington Trust, National Association together with such powers as are reasonably incidental thereto. The Collateral Agent agrees to act as suchsuch on the express conditions contained in this Section 11.07. The provisions of this Section 13.03 11.07 are solely for the benefit of the Collateral Agent and neither none of the Trustee nor Trustee, any of the Holders Holders, the Company or any of the Domestic Subsidiaries shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or and the Collateral Security Documents, the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth in this Indenture, the Collateral Documents to which it is party herein and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Security Documents, the Trustee and nor shall the Collateral Agent are authorized have or be deemed to have any fiduciary relationship with the Trustee, any Holder or the Company or any Domestic Subsidiary, and empowered to receive for no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the benefit of the Holders any funds collected Security Documents or distributed under otherwise exist against the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor AgreementAgent. Without limiting the generality of the foregoing and subject sentence, the use of the term “agent” in this Indenture with reference to the Collateral Documents, the Collateral Agent:
(i) Agent shall not be subject construed to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any Applicable Law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom, and is continuing;
(ii) intended to create or reflect only an administrative relationship between independent contracting parties. Except as expressly otherwise provided in this Indenture and the Security Documents, the Collateral Agent shall not have any duty and may use its sole discretion with respect to take exercising or refraining from exercising any discretionary action rights or exercise taking or refraining from taking any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that actions which the Collateral Agent is required expressly entitled to exercise;take or assert under this Indenture and the Security Documents, including the exercise of remedies pursuant to Article 6, and any action so taken or not taken shall be deemed consented to by the Trustee and the Holders.
(iiib) The Collateral Agent may execute any of its duties under this Indenture and the Security Documents by or through agents, employees or attorneys-in-fact and shall not, except as expressly set forth in the Collateral Documents, have any duty be entitled to discloseadvice of counsel concerning all matters pertaining to such duties, and the written advice of such counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. The Collateral Agent shall not be liable responsible for the failure to disclosenegligence or misconduct of any agent, any information relating to the Issuer employee or any attorney-in-fact that it selects as long as such selection was made without negligence or willful misconduct.
(c) None of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
agents or employees shall (ivi) shall not be liable for any action taken or not omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own negligence or willful misconduct) or under or in connection with any Security Document or the transactions contemplated thereby (except for its own negligence or willful misconduct), or (ii) be responsible in any manner to the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company or any Guarantor contained in this Indenture or any of the Security Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Indenture or any of the Security Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture or any of the Security Documents, or for any failure of the Company or any Guarantor or any other party to this Indenture or any of the Security Documents to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its agents or employees shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture or any of the Security Documents or to inspect the properties, books or records of the Company or any other Pledgor.
(d) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee or the Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee acting in accordance with Article 6 (subject to this Section 11.07); provided, however, that unless and until the Collateral Agent has received any such request, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable.
(Ae) The Collateral Agent may resign at any time by so notifying the Company and the Trustee in writing at least thirty (30) days prior to the proposed date of resignation, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral Agent resigns under this Indenture, the Trustee, subject to the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), 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 Trustee, subject to the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor Collateral Agent, which may be the same Person as the Trustee. If no successor Collateral Agent is appointed and consented to by the Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Collateral Agent, the Company or the Holders of at least 10% in principal amount of the then outstanding principal amount of the Notes shall be entitled to petition at the expense of the Company a court of competent jurisdiction to appoint a successor Collateral Agent. A successor Collateral Agent shall deliver a written acceptance of its appointment to the retiring Collateral Agent and to the Company. Thereupon, the resignation of the retiring Collateral Agent shall become effective, and the successor Collateral Agent shall have all the rights, powers and the duties of the Collateral Agent under this Indenture and the Security Documents. The successor Collateral Agent shall mail a notice of its succession to the Trustee. The retiring Collateral Agent shall promptly transfer all property held by it as Collateral Agent to the successor Collateral Agent, provided that all sums owing to the retiring Collateral Agent hereunder have been paid. Notwithstanding the replacement of the Collateral Agent pursuant to this Section 11.07(e), the Company’s obligations under this Section 11.07 and Section 11.12 shall continue for the benefit of the retiring Collateral Agent.
(f) Except as otherwise explicitly provided herein or in the Security Documents, neither the Collateral Agent nor any of its officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement Collateral or any other Collateral Documentpart thereof. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by accountable only for amounts that it actually receives as a Responsible Officer result of the exercise of such powers, and neither the Collateral Agent;
(v) Agent nor any of its officers, directors, employees or agents shall not be responsible for any act or have any duty failure to ascertain act hereunder, except for its own willful misconduct, gross negligence or inquire into bad faith.
(Ag) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created The Trustee is authorized and directed by the Collateral Documents, (E) Holders and the value or Holders by acquiring the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be Notes are deemed to have irrevocably agreed to authorized the foregoing provisions Trustee, as applicable, upon the expiration of the prior paragraph and shall be bound by those agreements Escrow Period, to (i) enter into the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Security Documents to which it is a party and all agreementsparty, power of attorney, documents and instruments incidental thereto, and act in accordance with (ii) bind the Holders on the terms thereofas set forth in such Security Documents, (iii) perform and observe its obligations under such Security Documents and (iv) cause the Collateral Agent to enter into and perform its obligations under the Security Documents. The Collateral Agent shall hold (directly or through any agent) is authorized and is directed by each Holder the Trustee and the Holders and the Holders by acquiring the Notes are deemed to so holdhave authorized the Collateral Agent, upon the expiration of the Escrow Period, to (i) enter into the Security Documents to which it is a party, (ii) bind the Trustee and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights terms as set forth in their favor such Security Documents and (iii) perform and observe its obligations under the Collateral such Security Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(fh) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor the Company and the other Pledgors or is cared for, protected, protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any GuarantorGrantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by an authorized officer, unless it is authorized proved that the Collateral Agent was negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Company (and empowered money held in trust by the Collateral Agent need not be segregated from other funds except to appoint one the extent required by law), and (iii) may consult with counsel of its selection and the written advice or more co-opinion of such counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. The grant of permissive rights or powers to the Collateral Agents as it deems necessary or appropriateAgent shall not be construed to impose duties to act.
(j) Subject It is hereby understood that the Dutch Parallel Debt (as defined in the Dutch Pledge Agreement) has been included in the Dutch Pledge Agreement for the purpose of determining the secured obligations in any Collateral that is governed by Dutch law, and in relation to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct such Dutch Parallel Debt:
(i) the Collateral Agent to institute shall act in its own name and maintainnot as agent of any Secured Party (but always for the benefit of the Secured Parties in accordance with the provisions of this Indenture, such suits the Notes, the Intercreditor Agreement and proceedings as it may deem expedient to protect or enforce the Liens securing Security Documents);
(ii) the Second Lien Obligations or the Collateral Documents to which rights, powers and authorities vested in the Collateral Agent pursuant to this Indenture, the Notes, the Intercreditor Agreement, the Security Documents, the Subsidiary Guarantees and any other agreements or Trustee instruments required to be executed pursuant to the terms thereof are subject to any restrictions imposed by mandatory Dutch law; and
(iii) the Collateral Agent shall be entitled to accept the Dutch Parallel Debt on behalf of each of the Secured Parties, notwithstanding the foregoing.
(k) If the Collateral Agent resigns in accordance with this Section 11.07, EOC shall execute such documents and take such other action as is a party necessary or to prevent any impairment of Collateral by any acts that may be unlawful or (in violation the opinion of the Collateral Documents or Agent) desirable in connection with the Intercreditor Agreements to which substitution, in accordance with Applicable Law, of the successor Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests creditor of the Holders in Dutch Parallel Debt and as beneficiary of the Collateral, including power to institute and maintain suits or proceedings to restrain Dutch Pledge Agreement securing the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral AgentDutch Parallel Debt.
Appears in 1 contract
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture Trustee and each of the Collateral Holders by acceptance of the Notes hereby designates and appoints JPMorgan Chase Bank, N.A. as collateral agent under the Security Documents and Intercreditor Agreements the Collateral Agency Agreement (in such capacity, together with its successors in such capacity, the “Collateral Agent”), and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of the Security Documents and the Collateral Agency Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture Indenture, the Security Documents and the Collateral DocumentsAgency Agreement, and Wilmington Trustconsents and agrees to the terms of the Collateral Agency Agreement and each Security Document, National Association as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as suchsuch on the express conditions contained in this Section 11.09. The provisions of this Section 13.03 11.09 are solely for the benefit of the Collateral Agent and neither none of the Trustee Trustee, any of the Holders nor any of the Holders Grantors shall have any rights as a third party beneficiary of any of the provisions contained hereinherein other than as expressly provided in Section 11.04. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions provision of this Indenture, the Intercreditor Collateral Agency Agreement and the Collateral Security Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or Indenture, the Security Documents and the Collateral DocumentsAgency 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 responsibilities, except those expressly set forth in this Indenture, the Collateral Security Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor, and to make further distributions of such funds to Holders according to the provisions of no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to , the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee Security Documents and the Collateral Agent are authorized to take Agency Agreement or refrain from taking any actions in accordance with otherwise exist against the terms of an Intercreditor AgreementCollateral Agent. Without limiting the generality of the foregoing and subject sentence, the use of the term “agent” in this Indenture with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom, and is continuing;intended to create or reflect only an administrative relationship between independent contracting parties.
(iib) shall not have The Collateral Agent may perform any duty to take any discretionary action of its duties under the Security Documents or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents Agency Agreement by or Intercreditor Agreement that through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the Collateral Agent is required respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates, (a “Related Person”) and shall be entitled to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty advice of counsel concerning all matters pertaining to disclosesuch duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be liable responsible for the failure to disclosenegligence or willful misconduct of any receiver, any information relating to the Issuer agent, employee, attorney-in-fact or any Related Person that it selects as long as such selection was made in good faith.
(c) None of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
respective Related Persons shall (ivi) shall not be liable for any action taken or not omitted to be taken by it any of them under or in connection with this Indenture or the transactions contemplated hereby (A) with the consent or at the request of the Trustee, (B) in the absence of except for its own gross negligence or willful misconduct misconduct) or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in under or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein Security Document or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, Agency Agreement or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, transactions contemplated thereby (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds its own gross negligence or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenturewillful misconduct), or (ii) payments from the Collateral Agent be responsible in excess any manner to any of the amount required Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company or any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, or any other Secured Notes Documents, or in any certificate, report, statement or other document referred to be paid to the Trustee pursuant to Article 5or provided for in, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied or received by the Collateral Agent pursuant to under or in connection with, this Indenture, the terms Security Documents or the Collateral Agency Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture and Indenture, the Intercreditor Security Documents or the Collateral Agency Agreement.
(f) The , or for any failure of any Grantor or any other party to this Indenture, the Security Documents or the Collateral Agency Agreement to perform its obligations hereunder or thereunder. None of the Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or its respective Related Persons shall be under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever obligation to the Trustee or any Holder to ascertain or to inquire as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture observance or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority performance of any of the Collateral agreements contained in, or conditions of, this Indenture, the Security Documents or the security interests Collateral Agency Agreement or Liens intended to be created thereby.
(h) The benefitsinspect the properties, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintainbooks, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect records of any Grantor or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral AgentGrantor’s Affiliates.
Appears in 1 contract
Samples: Indenture (FS Energy & Power Fund)
Collateral Agent. (a) The Issuer hereby appoints Wilmington TrustU.S. Bank National Association shall initially act as Collateral Agent and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements, National Association, to act on behalf of the Secured Parties as neither the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders its officers, directors, employees or agents shall have any rights as a third party beneficiary of be liable for failure to demand, collect or realize upon any of the provisions contained herein. Each Holder agrees that Notes Collateral or for any action taken by the Collateral Agent delay in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent doing so or shall be under any obligation to sell or otherwise dispose of any rights Notes Collateral upon the request of any other Person or remedies set forth herein and therein shall be authorized and binding upon all Holdersto take any other action whatsoever with regard to the Notes Collateral or any part thereof. Notwithstanding any provision to the contrary contained elsewhere in this Indenture Indenture, the Intercreditor Agreements or the Collateral Security Documents, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and in the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Security Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documentsparty, (B) agrees that the Liens on the Collateral securing the Obligations nor shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized have or be deemed to take have any trust or refrain from taking any actions in accordance other fiduciary relationship with the terms of an Trustee, any Holder, the Issuer or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Intercreditor AgreementAgreements or the Security Documents or shall otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” or “Agent” in this Indenture, the Intercreditor Agreements and subject the Security Documents with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom and is continuing;
(ii) shall not have any duty intended to take any discretionary action create or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of reflect only an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Documentadministrative relationship between independent contracting parties. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by accountable only for amounts that it actually receives as a Responsible Officer result of the exercise of such powers, and neither the Collateral Agent;
(v) Agent nor any of its officers, directors, employees or agents shall not be responsible for any act or have any duty failure to ascertain act hereunder, except for its own willful misconduct or inquire gross negligence (as determined by a final, non-appealable order of a court of competent jurisdiction).
(b) The Collateral Agent is authorized and directed to (i) enter into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Security Documents, (Eii) enter into the value or Intercreditor Agreements, (iii) bind the sufficiency of any Collateral, or (F) Holders on the satisfaction of any condition terms as set forth in the Security Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Security Documents and the Intercreditor Agreements.
(c) If the Issuer or any Collateral Document, other than to confirm receipt Guarantors Incur any obligations in respect of items expressly required to be delivered any First Priority Lien Obligations at any time when no intercreditor agreement with respect thereto is in effect or at any time when Indebtedness constituting First Priority Lien Obligations entitled to the Collateral Agent; and
(vi) benefit of an existing intercreditor agreement is concurrently retired, the Issuer shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted deliver to the Collateral Agent an Officers’ Certificate so stating and requesting the Collateral Agent to enter into an Intercreditor Agreement in favor of a designated agent or representative for the benefit holders of the Secured Parties pursuant to First Priority Lien Obligations so Incurred, and the Trustee and the Collateral Documents or any lien and/or any filingAgent shall (and are hereby authorized and directed to) enter into such Intercreditor Agreement, or recording or otherwise creating, perfecting, continuing or maintaining any lien or bind the perfection thereof. By accepting Holders on the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph terms set forth therein and shall be bound by those agreements to the fullest extent permitted by lawperform and observe their obligations thereunder.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder act pursuant to so hold, and shall be entitled to enforce on behalf the instructions of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times and the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture Security Documents and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to Notes Collateral. For the Trustee or any avoidance of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretodoubt, the Collateral Agent shall have no discretion under this Indenture, the Intercreditor Agreements or the Security Documents and shall not be required to make or give any determination, consent, approval, request or direction without the written direction of the requisite Holders or the Trustee, as applicable. After the occurrence of an Event of Default, the Trustee may direct the Collateral Agent in connection with any action required or permitted by this Indenture, the Security Documents or the Intercreditor Agreements.
(e) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee, a Holder or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee or the Holders of a majority in aggregate principal amount of the Securities subject to this Article 11.
(f) No provision of this Indenture or any Security Document shall require the Collateral Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Holders (or the Trustee in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it. Notwithstanding anything to the contrary contained in this Indenture, the Intercreditor Agreements or the Security Documents, in the event the Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Notes Collateral, the Collateral Agent shall not be required to commence any such action, exercise any remedy, inspect or conduct any studies of any property or take any such other duty action if the Collateral Agent has determined that the Collateral Agent may incur personal liability as a result of the presence at, or liability whatsoever release on or from, the Notes Collateral or such property of any hazardous substances unless the Collateral Agent has received security or indemnity from the Holders in an amount and in a form all satisfactory to the Collateral Agent in its sole discretion, protecting the Collateral Agent from all such liability. The Collateral Agent shall at any time be entitled to cease taking any action described in this Section 11.09 (f) if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient.
(g) The Collateral Agent shall not be responsible in any manner to any of the Trustee or any Holder for the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents or the Intercreditor Agreements or for any failure of the Issuer, any Guarantor or any other party to this Indenture, the Security Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. The Collateral Agent shall not be under any obligation to the Trustee or any Holder to ascertain or to inquire as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture observance or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority performance of any of the Collateral agreements contained in, or conditions of, this Indenture, the Security Documents or the security interests Intercreditor Agreements or Liens intended to be created therebyinspect the properties, books or records of the Issuer or the Guarantors.
(h) The benefitsparties hereto and the Holders hereby agree and acknowledge that the Collateral Agent shall not assume, protections be responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and indemnities unforeseeable), judgments, expenses and costs (including any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any environmental law as a result of this Indenture, the Intercreditor Agreements or the Security Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that, in the exercise of its rights under this Indenture, the Intercreditor Agreements and the Security Documents, the Collateral Agent may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Agent in the Notes Collateral and that any such actions taken by the Collateral Agent shall not be construed as or otherwise constitute any participation in the management of such Notes Collateral.
(i) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by two Officers pursuant to this Section 11.09(i) (a “Security Document Order”), the Collateral Agent is hereby authorized to execute and enter into, and shall execute and enter into, without the further consent of any Holder or the Trustee, any Security Document to be executed after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is a Security Document Order referred to in, this Section 11.09(i) and (ii) instruct the Collateral Agent to execute and enter into such Security Document. Any such execution of a Security Document shall be at the direction and expense of the Issuer, upon delivery to the Collateral Agent of an Officers’ Certificate and an Opinion of Counsel stating that all conditions precedent to the execution and delivery of such Security Document have been satisfied. The Holders, by their acceptance of the Securities, hereby authorize and direct the Collateral Agent to execute such Security Documents.
(j) The Collateral Agent’s resignation or removal shall be governed by provisions equivalent to Section 7.07(a), Section 7.07(b), Section 7.07(c), Section 7.07(d) and Section 7.07(f).
(k) The Collateral Agent shall be entitled to all of the protections, immunities, indemnities, rights and privileges of the Trustee hereunderset forth in this Indenture, as applicable of this Indenture and all such protections, immunities, indemnities, rights and privileges shall apply mutatis mutandis to the Collateral Agent in its capacity as suchroles under any Security Document or the Intercreditor Agreements, including, without limitation, whether or not expressly stated therein.
(l) In relation to the rights to reimbursement and indemnification.Swiss Security Documents the following additional provisions shall apply:
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.holds:
(jA) Subject any security created or expressed to be created under or pursuant to the Intercreditor AgreementsSwiss Security Documents by way of a security assignment (Sicherungsabtretung) or transfer for security purposes (Sicherungsübereignung) or any other non-accessory (nicht akzessorische) security;
(B) the benefit of this Section 11.09(l); and
(C) any proceeds and other benefits of such security as fiduciary (treuhänderisch) in its own name but for the account of any Holder of Securities, the Trustee is authorized and empowered any other Secured Party (as defined in the Collateral Agreement) which have the benefit of such security in accordance with the Finance Documents and the respective Swiss Security Documents;
(ii) each Holder of Securities, the Trustee and any other Secured Party (as defined in the Collateral Agreement) hereby authorizes the Collateral Agent:
(A) to institute accept and maintainexecute as its direct representative (direkter Stellvertreter) any Swiss law pledge or any other Swiss law accessory (akzessorische) security created or expressed to be created under or pursuant to the Swiss Security Documents for the benefit of such Holder of Securities, the Trustee and any other Secured Party (as defined in the Collateral Agreement) and hold, administer and, if necessary, enforce any such security on behalf of each relevant Secured Party (as defined in the Collateral Agreement) which has the benefit of such security;
(B) to agree as its direct representative (direkter Stellvertreter) to amendments and alterations to any Swiss Security Documents which creates a pledge or any other Swiss law accessory (akzessorische) security;
(C) to effect as its direct representative (direkter Stellvertreter) any release of a security created under the Swiss Security Documents in accordance with this Indenture; and
(D) to exercise as its direct representative (direkter Stellvertreter) such other rights granted to the Collateral Agent to institute hereunder or under the relevant Swiss Security Documents; and
(iii) the Issuer and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or each Guarantor hereby authorize the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or Agent, when acting in violation its capacity as creditor of the Collateral Documents Parallel Debt claims as set forth in Section 11.10, to hold:
(A) any Swiss law pledge or any other Swiss law accessory (akzessorische) security;
(B) any proceeds of such security; and
(C) the Intercreditor Agreements to which benefit of this Section 11.09(l) and of the Collateral Agent or Trustee is a party or this IndentureParallel Debt claims, and such suits and proceedings as creditor in its own right but for the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests benefit of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of HoldersSecurities, the Trustee or any other Secured Party (as defined in the Collateral AgentAgreement) in accordance with this Indenture.
Appears in 1 contract
Samples: Indenture (Quotient LTD)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, all the Collateral Documents to which it is party rights and protections provided in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or expertsSecurity Documents.
(b) Subject to Section 7.01, neither the provisions Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Intercreditor Agreements and Security Documents, for the Collateral Documentsobtaining or maintaining insurance on any Collateral, for the creation, perfection, priority, sufficiency or protection of any First Priority Lien, or any defect or deficiency as to any such matters. Beyond the exercise of reasonable care in the custody thereof, the Trustee shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Collateral Agent are authorized and empowered Trustee shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Trustee shall be deemed to receive for have exercised reasonable care in the benefit custody of the Holders any funds collected or distributed under Collateral in its possession if the Collateral Documents is accorded treatment substantially equal to that which it accords its own property and Intercreditor Agreements to which shall not be liable or responsible for any loss or diminution in the Collateral Agent value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenturein good faith.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary Subject to the provisions of any such intercreditor agreement or other agreements or documentsSecurity Documents and the First Lien Intercreditor Agreement, (Bi) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and shall direct the Collateral Agent are authorized to take and (ii) except as directed by the Trustee as required or refrain from taking permitted by this Indenture and any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject other representatives or pursuant to the Collateral Security Documents, the holders acknowledge that Collateral AgentAgent will not be obligated:
(i1) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien act upon directions purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; andit by any other Person;
(vi2) shall not be responsible to foreclose upon or liable for creating, preserving, perfecting otherwise enforce any First Priority Lien; or
(3) to take any other action whatsoever with regard to any or validating the security interest granted to the Collateral Agent for the benefit all of the Secured Parties pursuant to the Collateral First Priority Liens, Security Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by lawCollateral.
(d) Subject to the provisions The holders of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees Notes agree that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on rights, privileges, protections, immunities, indemnities and benefits provided to the Collateral for their benefit, subject to Agent by the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Security Documents. The Holders may only act Furthermore, each holder of a Note, by written instruction to the Trusteeaccepting such Note, subject consents to the terms hereof, which shall instruct of and authorizes and directs the Trustee (in each of its capacities) and the Collateral AgentAgent to enter into and perform the First Lien Intercreditor Agreement, Junior Lien Intercreditor Agreement and Security Documents in each of its capacities thereunder.
(e) If the Issuers (i) Incur First Priority Lien Obligations at any time when the First Lien Intercreditor Agreement is not in effect or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, at any proceeds of Collateral or any payments with respect time when Indebtedness constituting First Priority Lien Obligations entitled to the Obligations arising underbenefit of an existing intercreditor agreement is concurrently retired, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or and (ii) payments from the Collateral Agent in excess of the amount required to be paid to direct the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same deliver to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture an Officer’s Certificate so stating and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct requesting the Collateral Agent to institute and maintain, such suits and proceedings enter into an intercreditor agreement (on substantially the same terms as it may deem expedient to protect the First Lien Intercreditor Agreement in effect on the Issue Date) in favor of a designated agent or enforce representative for the Liens securing holders of the Second First Priority Lien Obligations or so Incurred, the Collateral Documents to which holders acknowledge that the Collateral Agent or Trustee is a party or hereby authorized and directed to prevent any impairment of Collateral by any acts that may be unlawful or in violation of enter into such intercreditor agreement, bind the Collateral Documents or holders on the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, terms set forth therein and such suits perform and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect observe its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agentobligations thereunder.
Appears in 1 contract
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, Trustee shall act as Collateral Agent and shall be authorized to act on behalf of the Secured Parties appoint co-Collateral Agents as necessary in its sole discretion. Neither the Collateral Agent under this Indenture and each nor any of its respective officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral Documents and Intercreditor Agreements and or for any delay in doing so or shall be under any obligation to exercise such powers and perform such duties as are expressly delegated sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as suchor any part thereof. The provisions of this Section 13.03 are solely for the benefit of powers conferred on the Collateral Agent hereunder are solely to protect the Collateral Agent's interest in the Collateral and shall not impose any duty upon the Collateral Agent to exercise any such powers. The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Trustee Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own gross negligence or willful misconduct.
(b) The Trustee, as Collateral Agent, is authorized and directed to (i) enter into the Security Documents (ii) bind the Holders of Notes on the terms as set forth therein and (iii) perform and observe its obligations under the Security Documents.
(c) The Collateral Agent's duties and responsibilities hereunder shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken be determined solely by the Collateral Agent in accordance with the express provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any no further duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreementsshall be implied. The Collateral Agent makes no representation and has no responsibility as to the validity of this Indenture or of any other instruments referred to herein, or as to the correctness of any statement contained herein.
(d) The Collateral Agent may consult with legal counsel selected by it, and it shall not be liable for any action taken or not taken omitted by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it good faith in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of The Collateral or any payments Agent's sole duty with respect to the Obligations arising undercustody, or relating to, this Indenture, except for any such proceeds or payments received by safekeeping and physical preservation of the Trustee from Collateral in its possession shall be to deal with it in the same manner as the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and deals with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreementsimilar property for its own account.
(f) The Collateral Agent shall have no obligation whatsoever not be required to use its own funds in the Trustee performance of its obligations or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protectedduties, or insured in exercise of any rights or has been encumberedpowers, or that and shall not be required to take any action which, in the Collateral Agent’s Liens have been properly 's sole judgment, could involve it in expense or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly liability unless furnished with security and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to indemnity which the Collateral Agent pursuant deems in its sole discretion, to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoingbe satisfactory.
(g) Notwithstanding anything to the contrary Anything in this Indenture or any Collateral Documentthe Security Documents to the contrary notwithstanding, neither in no event shall the Collateral Agent nor be liable under or in connection with this Indenture or the Trustee shall be responsible forSecurity Documents for indirect, and neither makes any representation regardingspecial, the validity, effectiveness incidental or priority consequential loss or damage of any kind whatsoever, including lost profits, whether or not the likelihood of such loss or damage was known to the Collateral Agent and regardless of the Collateral Documents or the security interests or Liens intended to be created therebyform of action.
(h) The benefits, protections and indemnities agreements set forth in this Section 10.09 shall survive the resignation or removal of the Trustee hereunderCollateral Agent, as applicable the termination of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests release of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the all Collateral Agenthereunder.
Appears in 1 contract
Samples: Indenture (Transtel S A)
Collateral Agent. (ai) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf Each of the Secured Parties as Buyers and the Company hereby appoint the Collateral Agent under this Indenture for purposes of acquiring, holding and each enforcing any and all Liens on Collateral granted by any of the Grantors to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. The Collateral Agent may resign by providing not less than sixty (60) days’ prior written notice of such resignation to the Company and the Lead Lenders. Upon receipt of any such notice of resignation or the removal of the Collateral Documents and Intercreditor Agreements and Agent, the Required Holders shall have the right to exercise such powers and perform such duties as are expressly delegated appoint a successor Collateral Agent. The Required Holders may remove the Collateral Agent by written notice to the Collateral Agent by the terms of this Indenture and the Collateral Company. Capitalized terms used in this Section 7(o) and not defined in this Agreement shall have the respective meanings ascribed to them in the Security Agreement.
(ii) Notwithstanding anything to the contrary contained herein or in any other Transaction Documents, the authority to enforce rights and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for remedies under the benefit Security Documents against any one or more of the Collateral Agent Grantors shall be vested exclusively in, and neither the Trustee nor any of the Holders all actions and proceedings at law in connection with such enforcement shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by be instituted and maintained exclusively by, the Collateral Agent in accordance with the provisions Security Documents for the benefit of this Indenture, all the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. Buyers.
(iii) The Collateral Agent shall not be liable for amend any action taken or not taken by it in of the absence Security Documents without the prior written consent of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or expertsRequired Holders.
(biv) Subject to the provisions of the Intercreditor Agreements The Buyers and the Collateral Documents, the Trustee Company acknowledge and agree that the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of acting in such funds to Holders according capacity as an accommodation to the provisions of this Indenture.
(c) Each Holder other Buyers and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) duties to the other Buyers. The Collateral Agent shall not have exercise any duty to discretionary power or take any discretionary action or under the Security Documents and shall exercise any discretionary powers, except discretionary rights and powers expressly contemplated under the Security Documents as directed in writing by the Collateral Documents or Intercreditor Agreement that the Required Holders. The Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable Buyer for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by lawRequired Holders.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Samples: Securities Purchase Agreement (Lucid Diagnostics Inc.)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees has been appointed to act as such. The provisions of this Section 13.03 are solely for the benefit Collateral Agent hereunder by Lenders and, by their acceptance of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenturebenefits hereof, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order)other Secured Parties. The Collateral Agent shall be entitled to rely uponobligated, and shall not incur have the right hereunder, to make demands, to give notices, to FIRST LIEN PLEDGE AND SECURITY AGREEMENT exercise or refrain from exercising 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper personrights, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement and the Credit Agreement; provided, the Collateral Agent shall, after payment in full of all Obligations under the Credit Agreement and the other Credit Documents, exercise, or refrain from exercising, any remedies provided for herein in accordance with the terms instructions of an Intercreditor the holders of a majority of the aggregate notional amount (or, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. Without limiting the generality In furtherance of the foregoing and subject to the Collateral Documentsprovisions of this Section, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied dutieseach Secured Party, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request acceptance of the Trusteebenefits hereof, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating agrees that such action is permitted by the terms of the Intercreditor Agreement or it shall have no right individually to realize upon any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created exercised solely by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereofof this Section. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If resign at any time by giving written notice thereof to Lenders and the Grantors, and Collateral Agent may be removed at any time with or times without cause by an instrument or concurrent instruments in writing delivered to the Trustee shall receive (i) Grantors and Collateral Agent signed by payment, foreclosure, set-off or otherwise, the Requisite Lenders. Upon any proceeds such notice of Collateral resignation or any payments with respect to such removal, Requisite Lenders shall have the Obligations arising underright, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or upon five (ii5) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over Business Days' notice to the Collateral Agent, in kindfollowing receipt of the Grantors' consent (which shall not be unreasonably withheld or delayed and which shall not be required while an Event of Default exists), to appoint a successor Collateral Agent. Upon the acceptance of any appointment as Administrative Agent under the terms of the Credit Agreement by a successor Administrative Agent, that successor Administrative Agent shall thereby also be deemed the successor Collateral Agent and such successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Collateral Agent under this Agreement, and the retiring or removed Collateral Agent under this Agreement shall promptly (i) transfer to such successor Collateral Agent all sums, Securities and other items of Collateral held hereunder, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Collateral Agent under this Agreement, and (ii) execute and deliver to such endorsements successor Collateral Agent such amendments to financing statements, and take such other actions, as may be required necessary or appropriate in connection with the assignment to negotiate such successor Collateral Agent of the same security interests created hereunder, whereupon such retiring or removed Collateral Agent shall be discharged from its duties and obligations under this Agreement. After any retiring or removed Collateral Agent's resignation or removal hereunder as the Collateral Agent, the provisions of this Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it under this Agreement while it was the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreementhereunder.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (American Reprographics CO)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent has been appointed by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees Lenders to act as such. The provisions of this Section 13.03 are solely for the benefit Collateral Agent and, by their acceptance of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenturebenefits hereof, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order)other Secured Parties. The Collateral Agent shall be entitled to rely uponobligated, and shall not incur have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper personrights, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement, the Intercreditor Agreement and the Credit Agreement; provided, the Collateral Agent shall, after payment in full of all Obligations under the Credit Agreement (other than contingent indemnification obligations for which no claim has been asserted) and the other Credit Documents, exercise, or refrain from exercising, any remedies provided for herein in accordance with the instructions of the holders of a majority of the aggregate notional amount (or, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. In furtherance of the foregoing provisions of this Section, each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for its benefit and for the benefit of the other Secured Parties in accordance with the terms of an Intercreditor this Section. Collateral Agent may resign or be removed in accordance with the provisions of the Credit Agreement. Without limiting the generality If any Grantor fails to perform or comply with any of the foregoing its agreements contained in this Agreement and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable provided for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor this Agreement or any other Collateral Credit Document. The Collateral Agent , shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing itself perform or comply, or otherwise cause performance or compliance, with such Event of Default is given by agreement, the Trustee or the Issuer and received by a Responsible Officer expenses of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or Agent incurred in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the such performance or observance of any compliance, together with interest thereon at the rate then in effect in respect of the covenantsLoans, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to shall be created payable by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted such Grantor to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph on demand and shall be bound constitute Obligations secured by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that Collateral. Wilmington Trust Company has been appointed the Collateral Agent shall execute hereunder pursuant to Section 9 of the Credit Agreement. It is expressly understood and deliver agreed by the parties to this Agreement that any authority conferred upon the Collateral Documents to which it Agent hereunder is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct of the delegation of authority made by the Secured Parties (other than the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from Credit Agreement and that the Collateral Agent in excess of the amount required has agreed to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, act (and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The any successor Collateral Agent shall have no obligation whatsoever to act) as such hereunder only on the Trustee or any of express conditions contained in the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
Credit Agreement (g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Section 9 thereof). Any successor Collateral Agent is authorized appointed in accordance with Section 9.7 of the Credit Agreement shall be entitled to all the rights, interests and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct benefits of the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agenthereunder.
Appears in 1 contract
Samples: Second Lien Pledge and Security Agreement (Dura Automotive Systems Inc)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf Each of the Secured Parties Holders, by acceptance of the Notes, and the Company hereby designates and appoints the Canadian Trustee as the Collateral Agent and as its agent under this Indenture Indenture, the Collateral Documents and the Intercreditor Agreement and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Collateral Documents and the Intercreditor Agreements Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture Indenture, the Collateral Documents and the Collateral DocumentsIntercreditor Agreement, and Wilmington Trustconsents and agrees to the terms of the Intercreditor Agreement and each Collateral Document, National Association as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as suchsuch on the express conditions contained in this Section 12.08. The provisions of this Section 13.03 12.08 are solely for the benefit of the Collateral Agent and neither none of the Trustee Trustees, any of the Holders, the Company nor any of the Holders Secured Guarantors shall have any rights as a third party beneficiary of any of the provisions contained hereinherein other than as expressly provided in Section 12.03. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions provision of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or Indenture, the Collateral DocumentsDocuments and the Intercreditor 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 responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustees, any Holder, the Company or any Secured Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken Agreement or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and otherwise exist against the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor AgreementAgent. Without limiting the generality of the foregoing and subject sentence, the use of the term “agent” in this Indenture with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom, and is continuing;intended to create or reflect only an administrative relationship between independent contracting parties.
(iib) shall not have The Collateral Agent may perform any duty to take any discretionary action or exercise any discretionary powersof its duties under this Indenture, except discretionary rights and powers expressly contemplated by the Collateral Documents or the Intercreditor Agreement that by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the Collateral Agent is required respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates, (a “Related Person”) and shall be entitled to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty advice of counsel concerning all matters pertaining to disclosesuch duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be liable responsible for the failure to disclosenegligence or willful misconduct of any receiver, any information relating to the Issuer agent, employee, attorney-in-fact or any Related Person that it selects as long as such selection was made in good faith.
(c) None of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
respective Related Persons shall (ivi) shall not be liable for any action taken or not omitted to be taken by it any of them under or in connection with this Indenture or the transactions contemplated hereby (A) with the consent or at the request of the Trustee, (B) in the absence of except for its own gross negligence or willful misconduct misconduct) or (C) under or in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of connection with any Collateral Document or the Intercreditor Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to either of the Trustees or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company or any Secured Guarantor or Affiliate of any Secured Guarantor, or any Officer or Related Person thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral DocumentAgent under or in connection with, this Indenture, the Collateral Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents or the Intercreditor Agreement, or for any failure of the Company or any Secured Guarantor or any other party to this Indenture, the Collateral Documents or the Intercreditor Agreement to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustees or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents or the Intercreditor Agreement or to inspect the properties, books, or records of the Company, any Secured Guarantor or any Secured Guarantor’s Affiliates.
(d) 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 Company or any Secured Guarantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. Except as required by the Intercreditor Agreement, the Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents or the Intercreditor Agreement unless it shall first receive such advice or concurrence of the Trustees or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Except as required by the Intercreditor Agreement, the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustees or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e) The Collateral Agent shall not be deemed not to have actual knowledge or notice of the occurrence of any Default or Event of Default Default, unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) Agent shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) received written notice from the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein Trustees or the occurrence of any Company referring to this Indenture, describing such Default or Event of Default, (D) Default and stating that such notice is a “notice of default” and the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to Trustees have provided the Collateral Agent for the benefit a copy of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereofsuch notice. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral DocumentDocuments and the Intercreditor Agreement, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver take such action with respect to such Default or Event of Default as may be requested by the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act Trustees in accordance with Article 7 or the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf Holders of a majority in aggregate principal amount of the Holders on the Collateral for their benefit, Notes (subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor AgreementSection 12.08).
(f) The Collateral Agent shall have no obligation whatsoever may resign at any time by giving thirty days’ written notice to the Trustee or any Trustees and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral Agent resigns under this Indenture, the Company shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the Holders to assure that resignation of the Collateral exists or is owned by any Issuer or Guarantor or is cared forAgent (as stated in the notice of resignation), protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuinenessCompany (so long as there is not a continuing Event of Default), validitymay appoint, marketability or sufficiency thereof or title theretoafter consulting with the Trustees, or subject to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any the consent of the rightsCompany (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), authorities, a successor collateral agent. If no successor collateral agent is appointed and powers granted or available consented to by the Company pursuant to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in respect the notice of resignation) the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the U.S. Trustee or the Collateral Agent may deem expedient shall be entitled to preserve or protect petition a court of competent jurisdiction, at the sole expense of the Company, to appoint a successor. Upon the acceptance of its interests 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 interests of term “Collateral Agent” shall mean such successor collateral agent, and the Holders in retiring Collateral Agent’s appointment, powers and duties as the Collateral, including power to institute and maintain suits or proceedings to restrain Collateral Agent shall be terminated. After the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holdersretiring Collateral Agent’s resignation hereunder, the Trustee provisions of this Section 12.08 (and Section 7.07) 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 AgentAgent under this Indenture.
Appears in 1 contract
Samples: Indenture (Eldorado Gold Corp /Fi)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, Association to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement Agreements and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Samples: Indenture (Qwest Corp)
Collateral Agent. (a) The Issuer By execution and delivery of this Agreement or by acceptance of this Agreement after the date hereof, each Purchaser hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as (i) the Collateral Agent under to hold the Liens granted in this Indenture and each of the Collateral Documents and Intercreditor Agreements Agreement and to exercise such all of the rights and powers and perform such duties as are expressly delegated granted to the Collateral Agent by the terms of in this Indenture Agreement and the Collateral Documentsall other rights which are reasonably incidental thereto, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely in each case for the benefit of itself and the Purchasers, and (ii) the Collateral Agent as its agent for the purposes of creating and neither perfecting its interest in the Trustee nor Collateral. The Collateral Agent hereby accepts such appointment by the Purchasers. All items of Collateral and any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken interest therein to be delivered to or held by the Collateral Agent in accordance with pursuant to this Agreement shall be held by the provisions Collateral Agent, for the benefit of this Indenture, the Intercreditor Agreement itself and the Collateral DocumentsPurchasers. The Purchasers acknowledge and agree that any right, and the exercise remedy, privilege or power under this Agreement shall be exercised by the Collateral Agent only. The Grantors may conclusively and absolutely rely, without inquiry, upon any action of any rights or remedies set forth herein and therein shall be authorized and binding upon the Collateral Agent in all Holders. Notwithstanding any provision matters referred to the contrary contained elsewhere in this Indenture or Agreement and the Collateral Documents, Purchasers confirm all that the Collateral Agent shall not do or cause to be done by virtue of its appointment as Collateral Agent.
(b) The Collateral Agent shall have any no duties or responsibilities except those expressly set forth in this IndentureAgreement. Neither the Collateral Agent nor any of its officers, directors, employees or agents shall be liable for any action taken or omitted by it as such hereunder to the maximum extent permitted by law. The duties of the Collateral Agent shall be mechanical and administrative in nature. The Collateral Agent shall not have, by reason of this Agreement or otherwise, a fiduciary relationship in respect of any of the Purchasers; and nothing is intended to or shall be so construed as to impose upon the Collateral Agent any obligations in respect of the Collateral except as expressly set forth herein.
(c) The Collateral Agent shall not receive any compensation for its services rendered hereunder, but shall be reimbursed by the Purchasers for all of its expenses incurred in performing its duties hereunder. To the extent the Grantors fail to make any payments to the Collateral Agent pursuant to Section 21 of this Agreement, the Purchasers agree that such payments shall be satisfied from the proceeds of liquidation of the Collateral prior to distributions to be made to the Purchasers pursuant to this Section. If, after such application, amounts owed to the Collateral Agent pursuant to Section 21 of this Agreement remain unpaid, each Purchaser hereby agrees to reimburse the Collateral Agent for such unpaid amounts evenly. Without limiting the generality of the foregoing, the Purchasers agree to reimburse the Collateral Agent promptly upon demand, in an equal amount, for any out-of-pocket expenses, including, without limitation, reasonable outside counsel fees and reasonably allocated in-house counsel expenses incurred by the Collateral Agent in connection with the performance of this Agreement.
(d) Independently and without reliance upon the Collateral Agent, each Purchaser, to the extent it deems appropriate, has made and shall continue to make (a) its own independent investigation of the financial condition and affairs of each of the Grantors, and (b) its own appraisal of the creditworthiness of each of the Grantors, and the Collateral Agent shall have no duty or responsibility, either initially or on a continuing basis, to provide any Purchaser with any credit or other information with respect thereto. The Collateral Agent shall not be responsible to any Purchaser for any recitals, statements, information, representations or warranties herein or in any document, certificate or other writing delivered in connection herewith or for the execution, effectiveness, genuineness, validity, enforceability, perfection, collectability, priority or sufficiency of this Agreement or the Collateral or the financial condition of any of the Grantors or be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement.
(e) Prior to receipt of a written notice from a Purchaser that an Event of Default has occurred ("Notice of Default"), the Collateral Documents Agent shall have the power, but not the obligation, to take such actions as the Collateral Agent in its discretion deems necessary or desirable to perfect, preserve, or otherwise protect the security interest and Liens in the Collateral or any part thereof, provided that the Collateral shall not take any such action if objected to by any Purchaser. After a Notice of Default has been received by the Collateral Agent, Collateral Agent shall only take such actions under this Agreement as may be unanimously directed by the Purchasers or by a final order, decree or judgment of a court of competent jurisdiction and from which no appeal has been taken and as to which the time the right to appeal has expired. Except as set forth in clause (i) of this Section, the Collateral Agent shall be required to act or not act upon the unanimous instructions of the Purchasers, and those instructions shall be binding upon the Collateral Agent and both of the Purchasers.
(f) All proceeds of the Collateral shall be applied as follows:
(i) first, to the payment of all fees and expenses (including, without limitation, all fees, taxes, attorneys' fees and legal expenses) incurred by the Collateral Agent in connection with retaking, holding, collecting, or liquidating the Collateral, until paid in full;
(ii) second, to payment of all fees, expenses, indemnities and other amounts owed to the Collateral Agent under Sections 21 or 30(c) or otherwise under this Agreement, until paid in full;
(iii) third, to payment of that portion of the Obligations constituting fees, expenses and indemnities owed to the Purchasers, ratably among the Purchasers in proportion to the respective amounts described in this clause third payable to them;
(iv) fourth, to payment of the other Obligations owed to the Purchasers, ratably among the Purchasers in proportion to the respective amounts described in this clause fourth payable to them, until paid in full; and
(v) last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Grantors or as otherwise required by law. In the event any proceeds of Collateral are deposited with or under the control of a Purchaser or if any Purchaser receives more of the proceeds of Collateral than it is party entitled to under this clause (f), such Purchaser shall pay over such proceeds to the Collateral Agent for application to the Obligations as provided in this clause (f).
(g) The Collateral Agent may at any time, and upon the request of all the Purchasers shall, give notice of its resignation to the Purchasers and the Grantors. Upon receipt of any such notice of resignation, the Purchasers shall have the right to appoint a successor. If no such successor shall have been so appointed by the Purchasers and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Collateral Agent shall be discharged from its duties and obligations hereunder (except that in the Intercreditor Agreementscase of any collateral security held by the Collateral Agent on behalf of the Purchasers, the retiring Collateral Agent shall continue to hold such collateral security until such time as a successor Collateral Agent is appointed) and (b) all payments, communications and determinations provided to be made by, to or through the Collateral Agent shall instead be made by or to each Purchaser directly, until such time as the Purchasers appoint a successor Collateral Agent as provided for above in this Section. Upon the acceptance of a successor's appointment as Collateral Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Collateral Agent, and the retiring Collateral Agent shall be discharged from all of its duties and obligations hereunder (if not already discharged therefrom as provided above in this Section). After the retiring Collateral Agent's resignation hereunder, the provisions of this Section shall continue in effect for the benefit of such retiring Collateral Agent in respect of any actions taken or omitted to be taken by it while it was acting as Collateral Agent.
(h) The Collateral Agent shall not be liable for any action taken or not taken omitted by it in at the absence request of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 all the proper person. The Collateral Agent may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or expertsPurchasers.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) Notwithstanding anything in this Agreement or any other agreement or document, express or implied, it is agreed that (i) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Documents Agent to which it liability or that is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with contrary to applicable law; (iii) the terms thereof. The Collateral Agent shall hold (directly may consult with legal counsel or through any agent) independent public accountants and is directed other experts selected by each Holder to so hold, it and shall be entitled to enforce on behalf fully rely upon any opinion of the Holders on such counsel or accountant in connection with any action taken or omitted to be taken by the Collateral for their benefitAgent in accordance with the advice of such counsel, subject to the provisions of the Intercreditor Agreement. Holders may not, individually accountants or collectively, take any direct action to enforce any rights in their favor under experts; and (iv) the Collateral Documents. The Holders Agent may only act perform any and all of its duties and exercise its rights and powers hereunder by written instruction to the Trustee, subject to the terms hereof, which shall instruct or through any one or more sub-agents appointed by the Collateral Agent.
(ej) If at any time or times the Trustee shall receive (i) by paymentThe Purchasers hereby agree amongst themselves that, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, extent the Purchasers disagree on any direction provided or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same provided to the Collateral Agent such proceeds with respect to be applied by this Agreement, the Purchasers shall meet and seek in good faith to resolve any disagreements.
(k) The provisions of this Section are solely for the benefit of the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authoritiesPurchasers, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent Grantors shall not have no other duty or liability whatsoever to the Trustee or any Holder rights as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority third party beneficiaries of any of the Collateral Documents or the security interests or Liens intended to be created therebysuch provisions.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees has been appointed to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent hereunder and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, under the Intercreditor Agreement and by Lenders and, by their acceptance of the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documentsbenefits hereof, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreementsother Secured Parties. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral DocumentsAgreement, the Trustee and the Collateral Agent are authorized shall be obligated, and empowered to receive for shall have the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and right hereunder, to make further distributions of such funds demands, to Holders according give notices, to the provisions of this Indenture.
(c) Each Holder exercise or refrain from exercising any rights, and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement, the Credit Agreement and the Intercreditor Agreement; provided, the Collateral Agent shall, after payment in full of all Obligations under the Credit Agreement and the other Credit Documents, exercise, or refrain from exercising, any remedies provided for herein in accordance with the terms instructions of an Intercreditor the holders of a majority of the aggregate notional amount (or, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements. Without limiting the generality In furtherance of the foregoing and subject to the Collateral Documentsprovisions of this Section, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied dutieseach Secured Party, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request acceptance of the Trusteebenefits hereof, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating agrees that such action is permitted by the terms of the Intercreditor Agreement or it shall have no right individually to realize upon any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created exercised solely by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereofof this Section. The Collateral Agent shall hold (directly at all times be the same Person that is Administrative Agent under the Credit Agreement. Written notice of resignation by Administrative Agent pursuant to subsection 9.7 of the Credit Agreement shall also constitute notice of resignation as Collateral Agent under this Agreement; removal of Administrative Agent pursuant to Section 9.7 of the Credit Agreement shall also constitute removal of Collateral Agent under this Agreement and appointment of a successor Administrative Agent pursuant to subsection 9.7 of the Credit Agreement shall also constitute appointment of a successor Collateral Agent under this Agreement. Upon the acceptance of any appointment as Administrative Agent under subsection 9.7 of the Credit Agreement by a successor Administrative Agent, that successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent under this Agreement. Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, that successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or through any agent) and is directed by each Holder to so holdremoved Collateral Agent under this Agreement, and the retiring or removed Collateral Agent under this Agreement shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive promptly (i) by paymenttransfer to such successor Collateral Agent all sums, foreclosure, set-off or otherwise, any proceeds Securities and other items of Collateral held hereunder, together with all records and other documents necessary or any payments appropriate in connection with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by performance of the Trustee from duties of the successor Collateral Agent pursuant to the terms of under this IndentureAgreement, or and (ii) payments from the execute and deliver to such successor Collateral Agent or otherwise authorize the filing of such amendments to financing statements, and take such other actions, as may be necessary or appropriate in excess connection with the assignment to such successor Collateral Agent of the amount required to security interests created hereunder, whereupon such retiring or removed Collateral Agent shall be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to discharged from its duties and obligations under this Agreement. After any retiring or removed Collateral Agent's resignation or removal hereunder as the Collateral Agent, in kind, and with such endorsements the provisions of this Agreement shall inure to its benefit as may to any actions taken or omitted to be required to negotiate the same to taken by it under this Agreement while it was the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreementhereunder.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Holders by acceptance of the Notes, and each beneficial owner of an interest in a Note, hereby designates and appoints the Collateral Agent as its agent under this Indenture, the First Lien Intercreditor Agreement and the other Collateral Documents and Intercreditor Agreements the Issuer directs and authorizes and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture and the Collateral Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture Indenture, the First Lien Intercreditor Agreement and the other Collateral Documents, and Wilmington Trustconsents and agrees to the terms of the First Lien Intercreditor Agreement and each Collateral Document, National Association as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms or the terms of this Indenture. The Collateral Agent agrees to act as suchsuch on the express conditions contained in this Section 1508. The provisions of this Section 13.03 1508 are solely for the benefit of the Collateral Agent and neither none of the Trustee Trustee, any of the Holders nor any of the Holders Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions provision of this Indenture, the First Lien Intercreditor Agreement and and/or the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or Indenture, the First Lien Intercreditor Agreement and the other Collateral Documents, the duties of the Collateral Agent shall be ministerial and administrative in nature, and Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth in this Indenture, the Collateral Documents to which it is party herein and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Notes Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documentsparty, (B) agrees that the Liens on the Collateral securing the Obligations nor shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized have or be deemed to take have any trust or refrain from taking any actions in accordance other fiduciary relationship with the terms of an Trustee or any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the First Lien Intercreditor AgreementAgreement and the other Collateral Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing and subject sentence, the use of the term “agent” in this Indenture with reference to the Collateral DocumentsAgent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. Without limiting the generality of the foregoing the Collateral AgentAgent hereby undertakes, and each of the Holders by acceptance of the Notes and each beneficial owner of an interest in a Note authorize the Collateral Agent to:
(i) shall not hold and administer, or as the case may be subject to authorize and appoint, on behalf of and for the benefit of the Holders and beneficial owners of an interest in the Notes, any other person in accordance with the First Lien Intercreditor Agreement or First Lien Other Intercreditor Agreement (as applicable), any non-accessory Collateral (nicht-akzessorische Sicherheit) governed by the laws of the Federal Republic of Germany as fiduciary or other implied duties, regardless (treuhänderisch) in its own name but for the benefit of whether the Holders and beneficial owners of an Event of Default has occurred and is continuinginterest in the Notes;
(ii) shall not have hold and administer any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated accessory Collateral (akzessorische Sicherheit) governed by the Collateral Documents or Intercreditor Agreement that laws of the Collateral Agent is required to exerciseFederal Republic of Germany as direct representative (direkter Stellvertreter) in the name and on behalf of the Holders and beneficial owners of an interest in the Notes;
(iii) accept, enter into and execute, as its direct representative (direkter Stellvertreter) any pledge or other creation of any accessory security right (akzessorische Sicherheit) granted in favor of any Holder under German law in connection with the Notes and to agree to and execute in its name and on its behalf as its direct representative (direkter Stellvertreter) any amendments, confirmations and/or alterations to any Collateral Document governed by German law which creates a pledge or any other accessory security right (akzessorische Sicherheit) including the release or confirmation of release of such Collateral.
(b) The Collateral Agent may perform any of its duties under this Indenture, the First Lien Intercreditor Agreement or the other Collateral Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates, (a “Related Person”) and shall not, except as expressly set forth in the Collateral Documents, have any duty be entitled to discloseadvice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be liable responsible for the failure to disclosenegligence or willful misconduct of any receiver, any information relating to agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) Neither the Issuer or Collateral Agent nor any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
Related Persons shall (ivi) shall not be liable for any action taken or not omitted to be taken by it any of them under or in connection with this Indenture, the First Lien Intercreditor Agreement or the other transactions contemplated hereby (A) with the consent or at the request of the Trustee, (B) in the absence of except for its own gross negligence or willful misconduct as determined by a final order of a court of competent jurisdiction) or under or in connection with any Collateral Document or the transactions contemplated thereby (except for its own gross negligence or willful misconduct as determined by a final order of a court of competent jurisdiction), or (Cii) be responsible in reliance on a certificate of an authorized officer any manner to any of the Issuer stating that such action is permitted Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the terms Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Indenture, the First Lien Intercreditor Agreement or the other Collateral Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the First Lien Intercreditor Agreement or the other Collateral Documents, or for any failure of any Grantor or any other party to this Indenture or the Collateral DocumentDocuments to perform its obligations hereunder or thereunder. Neither the Collateral Agent nor any of its Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the First Lien Intercreditor Agreement or the other Collateral Documents or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Collateral Agent shall be entitled (in the absence of bad faith) 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 or any other Grantor), independent accountants and/or other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be deemed not bound to have actual knowledge 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. Unless otherwise expressly required hereunder or pursuant to any Collateral Document, the Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the First Lien Intercreditor Agreement or the other Collateral Documents unless it shall first receive such written advice or concurrence of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and received all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected from claims by any Holders in acting, or in refraining from acting, under this Indenture, the First Lien Intercreditor Agreement or the other Collateral Documents in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Collateral Agent;
(v) Agent shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) received written notice from the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein Holders or the occurrence of any Issuer referring to this Indenture, describing such Default or Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph Default and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees stating that the Collateral Agent shall execute and deliver the Collateral Documents to which it such notice is a party and all agreements, power “notice of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. default.” The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct such action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, such Default or relating to, this Indenture, except for any such proceeds or payments received Event of Default as may be requested by the Trustee from in accordance with Article Six or the Collateral Agent pursuant to the terms Holders of this Indenture, or (ii) payments from the Collateral Agent a majority in excess aggregate principal amount of the amount required Notes (subject to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor AgreementSection 1508).
(f) The Collateral Agent shall have no obligation whatsoever may resign at any time by notice to the Trustee or any and the Issuer, such resignation to be effective upon the acceptance of the Holders a successor agent to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the its appointment as Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to . If the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or resigns under this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.Issuer
Appears in 1 contract
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Indenture, the Collateral Documents and the Intercreditor Agreements and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture Indenture, the Collateral Documents and the Collateral DocumentsIntercreditor Agreements, and Wilmington Trustconsents and agrees to the terms of the Intercreditor Agreements and each Collateral Document, National Association as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as suchsuch on the express conditions contained in this Section 12.9. The provisions of this Section 13.03 12.9 are solely for the benefit of the Collateral Agent and neither none of the Trustee Trustee, any of the Holders nor any of the Holders Grantors shall have any rights as a third party beneficiary of any of the provisions contained hereinherein other than as expressly provided in Section 12.4. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions provision of this Indenture, the Intercreditor Agreement Agreements and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or Indenture, the Collateral DocumentsDocuments and the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and or otherwise exist against the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor AgreementAgent. Without limiting the generality of the foregoing and subject sentence, the use of the term “agent” in this Indenture with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom, and is continuing;intended to create or reflect only an administrative relationship between independent contracting parties.
(iib) shall not have The Collateral Agent may perform any duty to take any discretionary action or exercise any discretionary powersof its duties under this Indenture, except discretionary rights and powers expressly contemplated by the Collateral Documents or the Intercreditor Agreement that Agreements by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the Collateral Agent is required respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates, (a “Related Person”) and shall be entitled to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty advice of counsel concerning all matters pertaining to disclosesuch duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be liable responsible for the failure to disclosenegligence or willful misconduct of any receiver, any information relating to the Issuer agent, employee, attorney-in-fact or any Related Person that it selects as long as such selection was made in good faith.
(c) None of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
respective Related Persons shall (ivi) shall not be liable for any action taken or not omitted to be taken by it any of them under or in connection with this Indenture or the transactions contemplated hereby (A) with the consent or at the request of the Trustee, (B) in the absence of except for its own gross negligence or willful misconduct misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (Cii) be responsible in reliance on a certificate of an authorized officer any manner to any of the Issuer stating that such action is permitted Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the terms of Issuer, the Intercreditor Agreement Co-Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral DocumentAgent under or in connection with, this Indenture, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents or the Intercreditor Agreements, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) 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 Issuers or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, judgment, order, bond, debenture, or other paper or document. The Collateral Agent shall be deemed not fully justified in failing or refusing to have actual knowledge take any action under this Indenture, the Collateral Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by Holders of a Responsible Officer majority in aggregate principal amount of the Collateral Agent;
(v) Notes as it determines and, if it so requests, it shall not first be responsible for or have any duty indemnified to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created its satisfaction by the Collateral Documents, (E) the value or the sufficiency of Holders against any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power liability and expense which may be incurred by it by reason of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereoftaking or continuing to take any such action. The Collateral Agent shall hold (directly in all cases be fully protected in acting, or through in refraining from acting, under this Indenture, the Collateral Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any agent) and is directed by each Holder action taken or failure to so hold, and act pursuant thereto shall be entitled to enforce on behalf binding upon all of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral AgentHolders.
(e) If at The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any time Default or times Event of Default, unless a Trust Officer of the Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments take such action with respect to the Obligations arising under, such Default or relating to, this Indenture, except for any such proceeds or payments received Event of Default as may be requested by the Trustee from in accordance with Article VI or the Collateral Agent pursuant to the terms Holders of this Indenture, or (ii) payments from the Collateral Agent a majority in excess aggregate principal amount of the amount required Notes (subject to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor AgreementSection 12.9).
(f) The Collateral Agent shall have no obligation whatsoever may resign at any time by notice to the Trustee or any and the Issuers, such resignation to be effective upon the acceptance of the Holders a successor agent to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the its appointment as Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to . If the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or resigns under this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.Issuers shall appoint a successor collateral agent. If no successor
Appears in 1 contract
Samples: Indenture (Restaurant Brands International Limited Partnership)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf Each of the Secured Parties as Holders by acceptance of the Notes hereby designates and appoints (and directs the Trustee to designate and appoint) and the Trustee hereby designates and appoints the Collateral Agent as its agent under this Indenture Indenture, the Collateral Documents and the Intercreditor Agreements and each of the Holders by acceptance of the Notes hereby irrevocably authorizes (and directs the Trustee to authorize) and the Trustee hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture Indenture, the Collateral Documents and the Collateral DocumentsIntercreditor Agreements, and Wilmington Trustconsents and agrees to the terms of each Intercreditor Agreement and each Collateral Document, National Association as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as suchsuch on the express conditions contained in this Section 12.9. The provisions of this Section 13.03 12.9 are solely for the benefit of the Collateral Agent and neither none of the Trustee Holders nor any of the Holders Grantors shall have any rights as a third party beneficiary of any of the provisions contained hereinherein other than as expressly provided in Section 12.4. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions provision of this Indenture, the Intercreditor Agreement Agreements and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or Indenture, the Collateral DocumentsDocuments and the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth herein and in the other Note Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and or otherwise exist against the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor AgreementAgent. Without limiting the generality of the foregoing and subject sentence, the use of the term “agent” in this Indenture with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom, and is continuing;intended to create or reflect only an administrative relationship between independent contracting parties.
(iib) shall not have The Collateral Agent may perform any duty to take any discretionary action or exercise any discretionary powersof its duties under this Indenture, except discretionary rights and powers expressly contemplated by the Collateral Documents or the Intercreditor Agreement that Agreements by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the Collateral Agent is required respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates, (a “Related Person”) and shall be entitled to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty advice of counsel concerning all matters pertaining to disclosesuch duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be liable responsible for the failure to disclosenegligence or willful misconduct of any receiver, any information relating to the Issuer agent, employee, attorney-in-fact or any Related Person that it selects as long as such selection was made in good faith.
(c) None of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
respective Related Persons shall (ivi) shall not be liable for any action taken or not omitted to be taken by it any of them under or in connection with this Indenture or the transactions contemplated hereby (A) with the consent or at the request of the Trustee, (B) in the absence of except for its own gross negligence or willful misconduct misconduct) or (C) under or in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of connection with any Collateral Document or the Intercreditor Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Issuers or any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, or any other Note Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral DocumentAgent under or in connection with, this Indenture, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents or the Intercreditor Agreements, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) 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 Issuers or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be deemed not fully justified in failing or refusing to have actual knowledge take any action under this Indenture, the Collateral Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by Holders of a Responsible Officer majority in aggregate principal amount of the Collateral Agent;
(v) Notes as it determines and, if it so requests, it shall not first be responsible for or have any duty indemnified to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created its satisfaction by the Collateral Documents, (E) the value or the sufficiency of Holders against any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreementsliability, power loss and expense which may be incurred by it by reason of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereoftaking or continuing to take any such action. The Collateral Agent shall hold (directly in all cases be fully protected in acting, or through in refraining from acting, under this Indenture, the Collateral Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any agent) and is directed by each Holder action taken or failure to so hold, and act pursuant thereto shall be entitled to enforce on behalf binding upon all of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral AgentHolders.
(e) If at The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any time Default or times Event of Default, unless a Trust Officer of the Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments take such action with respect to the Obligations arising under, such Default or relating to, this Indenture, except for any such proceeds or payments received Event of Default as may be requested by the Trustee from in accordance with Article VI or the Collateral Agent pursuant to the terms Holders of this Indenture, or (ii) payments from the Collateral Agent a majority in excess aggregate principal amount of the amount required Notes (subject to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor AgreementSection 12.9).
(f) The Collateral Agent shall have no obligation whatsoever may resign at any time by notice to the Trustee or any and the Issuers, such resignation to be effective upon the acceptance of the Holders a successor agent to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the its appointment as Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to . If the Collateral Agent pursuant resigns under this Indenture, the Issuers shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to this Indenture or any Collateral Documents, it being understood and agreed that in respect the intended effective date of the Collateral, or any act, omission, or event related theretoresignation of the Collateral Agent (as stated in the notice of resignation), the Collateral Agent shall have no other duty or liability whatsoever may appoint, after consulting with the Trustee, subject to the Trustee or any Holder as to any consent of the foregoing.
Issuers (g) Notwithstanding anything which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Issuers pursuant to the contrary in this Indenture or any Collateral Document, neither preceding sentence within thirty (30) days after the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority intended effective date of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
resignation (h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders stated in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement notice of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Indenture, the Collateral Documents and the Intercreditor Agreements and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Collateral Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture Indenture, the Collateral Documents and the Collateral DocumentsIntercreditor Agreements, and Wilmington Trustconsents and agrees to the terms of the Intercreditor Agreements and each Collateral Document, National Association as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as suchsuch on the express conditions contained in this Section 12.9. The provisions of this Section 13.03 12.9 are solely for the benefit of the Collateral Agent and neither none of the Trustee Trustee, any of the Holders nor any of the Holders Grantors shall have any rights as a third party beneficiary of any of the provisions contained hereinherein other than as expressly provided in Section 12.4. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions provision of this Indenture, the Intercreditor Agreement Agreements and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or Indenture, the Collateral DocumentsDocuments and the Intercreditor Agreements, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and or otherwise exist against the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor AgreementAgent. Without limiting the generality of the foregoing and subject sentence, the use of the term “agent” in this Indenture with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom, and is continuing;intended to create or reflect only an administrative relationship between independent contracting parties.
(iib) shall not have The Collateral Agent may perform any duty to take any discretionary action or exercise any discretionary powersof its duties under this Indenture, except discretionary rights and powers expressly contemplated by the Collateral Documents or the Intercreditor Agreement that Agreements by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the Collateral Agent is required respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates, (a “Related Person”) and shall be entitled to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty advice of counsel concerning all matters pertaining to disclosesuch duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be liable responsible for the failure to disclosenegligence or willful misconduct of any receiver, any information relating to the Issuer agent, employee, attorney-in-fact or any Related Person that it selects as long as such selection was made in good faith.
(c) None of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
respective Related Persons shall (ivi) shall not be liable for any action taken or not omitted to be taken by it any of them under or in connection with this Indenture or the transactions contemplated hereby (A) with the consent or at the request of the Trustee, (B) in the absence of except for its own gross negligence or willful misconduct misconduct) or under or in connection with any Collateral Document or the Intercreditor Agreements or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or (Cii) be responsible in reliance on a certificate of an authorized officer any manner to any of the Issuer stating that such action is permitted Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the terms of Issuer, the Intercreditor Agreement Co-Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral DocumentAgent under or in connection with, this Indenture, the Collateral Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents or the Intercreditor Agreements, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents or the Intercreditor Agreements or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) 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 Issuers or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be deemed not fully justified in failing or refusing to have actual knowledge take any action under this Indenture, the Collateral Documents or the Intercreditor Agreements unless it shall first receive such advice or concurrence of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by Holders of a Responsible Officer majority in aggregate principal amount of the Collateral Agent;
(v) Notes as it determines and, if it so requests, it shall not first be responsible for or have any duty indemnified to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created its satisfaction by the Collateral Documents, (E) the value or the sufficiency of Holders against any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power liability and expense which may be incurred by it by reason of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereoftaking or continuing to take any such action. The Collateral Agent shall hold (directly in all cases be fully protected in acting, or through in refraining from acting, under this Indenture, the Collateral Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any agent) and is directed by each Holder action taken or failure to so hold, and act pursuant thereto shall be entitled to enforce on behalf binding upon all of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral AgentHolders.
(e) If at The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any time Default or times Event of Default, unless a Trust Officer of the Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments take such action with respect to the Obligations arising under, such Default or relating to, this Indenture, except for any such proceeds or payments received Event of Default as may be requested by the Trustee from in accordance with Article VI or the Collateral Agent pursuant to the terms Holders of this Indenture, or (ii) payments from the Collateral Agent a majority in excess aggregate principal amount of the amount required Notes (subject to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor AgreementSection 12.9).
(f) The Collateral Agent shall have no obligation whatsoever may resign at any time by notice to the Trustee or any and the Issuers, such resignation to be effective upon the acceptance of the Holders a successor agent to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the its appointment as Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to . If the Collateral Agent pursuant resigns under this Indenture, the Issuers shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to this Indenture or any Collateral Documents, it being understood and agreed that in respect the intended effective date of the Collateral, or any act, omission, or event related theretoresignation of the Collateral Agent (as stated in the notice of resignation), the Collateral Agent shall have no other duty or liability whatsoever may appoint, after consulting with the Trustee, subject to the Trustee or any Holder as to any consent of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.the
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Collateral Agent. (a) The Issuer Each Secured Party hereby appoints Wilmington TrustEsenjay Investments, National Association, to act on behalf LLC as Collateral Agent for the benefit of the Secured Parties as under this Agreement to serve from the date hereof until the termination of this Agreement.
(b) Each Secured Party hereby irrevocably authorizes Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements to take such action and to exercise such powers and perform such duties hereunder as are expressly delegated to the Collateral Agent provided herein or as requested in writing by the terms Secured Parties who hold a majority in interest of this Indenture outstanding principal and interest under the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for Notes (the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent “Majority Note Holders”) in accordance with the provisions of this Indentureterms hereof, the Intercreditor Agreement and the Collateral Documents, and the exercise by the together with such powers as are reasonably incidental thereto. Collateral Agent of may execute any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence duties hereunder by or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). The Collateral Agent through agents or employees and shall be entitled to rely upon, request and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it act in reliance upon the advise of counsel concerning all matters pertaining to be genuine and to have been signed or sent by the proper person. The Collateral Agent may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, its duties hereunder and shall not be liable for any action taken or not omitted to be taken by it in good faith in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenturetherewith.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure or responsible to disclose, any information relating Secured Party or to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable Company for any action taken or not omitted to be taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement Collateral Agent or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of such person hereunder or under any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other related agreement, instrument or document, except in the case of gross negligence or willful misconduct on the part of Collateral Agent, nor shall Collateral Agent be liable or responsible for (A) the validity, effectiveness, sufficiency, enforceability or enforcement of the Notes, this Agreement or any instrument or document delivered hereunder or relating hereto; (B) the title of the Company to any of the Collateral or the creation, perfection or priority freedom of any Lien purported of the Collateral from any prior or other liens or security interests; (C) the determination, verification or enforcement of the Company’s compliance with any of the terms and conditions of this Agreement; (D) the failure by the Company to deliver any instrument or document required to be created by delivered pursuant to the Collateral Documents, terms hereof; or (E) the value receipt, disbursement, waiver, extension or other handling of payments or proceeds made or received with respect to the Collateral, the servicing of the Collateral or the sufficiency enforcement or the collection of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered amounts owing with respect to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by lawCollateral.
(d) Subject In connection with this Agreement and the transactions contemplated hereby and any related document relating to the provisions any of the applicable Collateral DocumentCollateral, each Holder, by its acceptance of the Securities, Secured Parties agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder pay to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, on demand, its pro rata share (based on relative Obligations) of all fees and all expenses incurred in kindconnection with the operation and enforcement of this Agreement, and with such endorsements as may be required to negotiate the same Notes or any related agreement to the Collateral Agent extent that such proceeds to be applied fees or expenses have not been paid by the Collateral Agent pursuant Company. In connection with this Agreement and each instrument and document relating to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared forCollateral, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all each of the Issuer’s Secured Parties (on a pro rata basis based upon the outstanding Obligations owing to the Secured Parties) and the Company hereby agree to hold Collateral Agent harmless, and to indemnify Collateral Agent from and against any and all loss, damage, expense or liability which may be incurred by Collateral Agent under this Agreement and the transactions contemplated hereby and any Guarantor’s property constituting Collateral has been properly and completely listed related agreement or deliveredother instrument or document, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or unless such liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, caused by the validity, effectiveness willful misconduct or priority gross negligence of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
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Collateral Agent. (a) The Issuer Each Purchaser hereby appoints Wilmington Trust, National Association, AIR OP to act on behalf of the Secured Parties Purchasers as collateral agent (in such capacity, together with its successors and assigns, the “Collateral Agent Agent”) under this Indenture and each of the Collateral Documents and Intercreditor Agreements Pledge Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture Agreement and the Collateral DocumentsPledge Agreement, and Wilmington Trust, National Association AIR OP agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that In taking any action taken by the Collateral Agent in accordance with pursuant to the provisions of this Indenture, the Intercreditor Agreement and the Collateral DocumentsPledge Agreement, and the exercise by the Collateral Agent of in exercising any rights or remedies set forth herein therein, the Collateral Agent shall act at the direction of the Required Holders, and therein any such actions taken at the direction of the Required Holders shall be authorized and binding upon all HoldersPurchasers. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or Agreement and the Pledge Agreement, the duties of the Collateral DocumentsAgent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth in this Indenture, the Collateral Documents to which it is party herein and in the Intercreditor Agreements. The Pledge Agreement, nor shall the Collateral Agent shall not have or be liable for deemed to have any action taken trust or not taken by it in the absence of its own gross negligence fiduciary relationship with any Purchaser, and no implied covenants, functions, responsibilities, duties, obligations or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). The Collateral Agent liabilities shall be entitled to rely upon, read into this Agreement and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document the Pledge Agreement or other writing believed by it to be genuine and to have been signed or sent by otherwise exist against the proper person. The Collateral Agent may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or expertsAgent.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Pledge Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, Purchaser agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party Pledge Agreement and all agreements, power powers of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agentits terms.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(fc) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders Purchasers to assure that the Collateral exists or is owned by any Issuer or Guarantor the Company or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any GuarantorCompany’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture Agreement or any Collateral Documentsthe Pledge Agreement, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder Purchasers as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(id) The Collateral Agent may resign at any time by notice to each Purchaser and the Company, such resignation to be effective upon the acceptance by each Purchaser of a successor agent to its appointment as Collateral Agent. If no successor collateral agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject appointed prior to the Intercreditor Agreements, intended effective date of the Trustee is authorized and empowered to institute and maintain, or direct resignation of the Collateral Agent to institute and maintain(as stated in the notice of resignation), such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient appoint, after consulting with each Purchaser, subject to preserve or protect the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. Upon the acceptance of its interests 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 interests 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. Promptly following the acceptance of the Holders appointment of any successor Collateral Agent, the Company shall cause assignments of filings existing on the date of such assignment related to the Collateral to be filed or recorded sufficient to reflect the successor Collateral Agent, as secured party of record in accordance with applicable law related to each portion of the Collateral, including power to institute and maintain suits or proceedings to restrain . After the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holdersretiring Collateral Agent’s resignation hereunder, the Trustee provisions of this Section 12.2 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 AgentAgent under this Agreement.
Appears in 1 contract
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture Trustee and each of the Holders by acceptance of the Securities hereby authorize the appointment of the Collateral Agent as the Trustee’s and the Holders’ Collateral Agent under the Security Documents and Intercreditor Agreements in its capacity as mortgagee and security trustee pursuant to the Collateral Rig Mortgage, and the Trustee and each of the Holders by acceptance of the Securities hereby irrevocably authorize the Collateral Agent to enter into the Security Documents and to take such action on their behalf under the provisions of the Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Security Documents, and Wilmington Trust, National Association agrees to act together with such powers as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holdersreasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or and the Security Documents, the duties of the Collateral DocumentsAgent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth in this Indenture, the Collateral Documents to which it is party herein and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Security Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documentsparty, (B) agrees that the Liens on the Collateral securing the Obligations nor shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized have or be deemed to take have any trust or refrain from taking any actions in accordance fiduciary relationship with the terms of an Intercreditor AgreementTrustee, any Holder, the Company, any Collateral Grantor or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing and subject sentence, the use of the term “agent” in this Indenture with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom, and is continuing;
intended to create or reflect only an administrative relationship between independent contracting parties. The Trustee is authorized and directed by the Holders and the Holders by acquiring the Securities are deemed to have authorized the Trustee, as applicable, to cause the Collateral Agent to enter into and perform its obligations under the Security Documents. The Collateral Agent is authorized and directed by the Trustee and the Holders and the Holders by acquiring the Securities are deemed to have authorized the Collateral Agent, to (i) enter into the Security Documents to which it is a party, (ii) shall not have any duty to take any discretionary action or bind the Trustee and the Holders on the terms as set forth in such Security Documents and (iii) perform and observe its obligations and exercise any discretionary powers, except discretionary its rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral under such Security Documents, have any duty to discloseincluding entering into amendments, supplements and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is other modifications permitted by the terms of this Indenture or the Intercreditor Agreement Security Documents. Each Holder, by its acceptance of a Security, is deemed to have consented and agreed to the terms of each Security Document, as originally in effect and as amended, restated, replaced, supplemented or modified from time to time in accordance with its terms or the terms of this Indenture. Each of the Holders by acquiring the Securities is hereby deemed to have directed the Trustee to appoint the Collateral Agent as its mortgagee and security trustee and, for purposes of Swiss law, as agent, to receive, hold, administer and enforce the Collateral Rig Mortgage covering the Collateral Rig, as contemplated under this Indenture. Without limiting the generality of the foregoing, in relation to Swiss law-governed Security Documents (the “Swiss Security Documents”), each present and future Holder, by its acceptance of a Security, is deemed to have consented and agreed that:
(a) the Collateral Agent holds: (A) any security created or evidenced or expressed to be created or evidenced under or pursuant to a Swiss Security Document by way of a security assignment (Sicherungsabtretung) or transfer for security purposes (Sicherungsübereignung) or any other non-accessory (nicht akzessorische) security and (B) any proceeds and other benefits of such security, as fiduciary (treuhänderisch) in its own name but for the account of all relevant Holders which have the benefit of such security in accordance with this Indenture and the respective Swiss Security Document; and each present and future Holder hereby agrees that the Collateral Agent enters into any such Swiss Security Document as fiduciary (treuhänderisch) in its own name but for the account of all relevant Holders; and
(b) it authorizes the Collateral Agent: (A) to (a) accept and execute as its direct representative (direkter Stellvertreter) any Swiss law pledge or any other Swiss law accessory (akzessorische) security created or evidenced or expressed to be created or evidenced under or pursuant to a Swiss Security Document for the benefit of such Xxxxxx and (b) hold, administer and, if necessary, enforce any such security as direct representative (direkter Stellvertreter) on behalf of each relevant Holder which has the benefit of such security; (B) to agree as its direct representative (direkter Stellvertreter) to amendments and alterations to any Swiss Security Document which creates or evidences or expressed to create or evidence a pledge or any other Swiss law accessory (akzessorische) security; (C) to effect as its direct representative (direkter Stellvertreter) any release of a security created or evidenced or expressed to be created or evidenced under a Swiss Security Document in accordance with this Indenture and the respective Swiss Security Document; and (D) to exercise as its direct representative (direkter Stellvertreter) such other rights granted to the Collateral Agent under this Indenture and under the relevant Swiss Security Document. The Collateral Agent shall not be deemed not to have actual knowledge or notice of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Default or Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that unless the Collateral Agent shall execute and deliver have received written notice from the Trustee or unless a written notice of any event which is in fact such a Default is received by the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental theretoAgent at the address specified in Section 14.01, and act in accordance with such notice references the terms thereofSecurities and this Indenture. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct such action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, such Default or relating to, this Indenture, except for any such proceeds or payments received Event of Default as may be requested by the Trustee from in accordance with Article 6 or the Collateral Agent pursuant to the terms Holders of this Indenture, or (ii) payments from the Collateral Agent a majority in excess aggregate principal amount of the amount required Securities (subject to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) Section 12.05). The Collateral Agent shall have no obligation and makes no representation whatsoever to the Trustee or any of the Holders as to assure the existence, genuineness, value or protection of the Collateral or the sufficiency of any Security Documents, or that the Collateral exists or is owned by any Issuer or Guarantor of the Collateral Grantors or is cared for, protected, protected or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any GuarantorCollateral Grantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, disclosure or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral other Security Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture . The grant of permissive rights or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis powers to the Collateral Agent shall not be construed to impose duties to act. For the avoidance of doubt, nothing herein shall require the Collateral Agent to file financing statements or continuation statements, to record any documents or instruments in any public office at any time or be responsible for perfection or maintaining the perfection of the security interests purported to be created by the Security Documents and such responsibility shall be solely that of the Company. Each of the Collateral Agent and the Trustee, each in its capacity as such, includingshall not be liable or responsible for the failure of the Company or any Collateral Grantor to maintain insurance on the Collateral, without limitationnor shall it be responsible for any loss due to the insufficiency of such insurance or by reason of the failure of any insurer to pay the full amount of any loss against which it may have insured to the Company or any Collateral Grantor, the rights Trustee, the Collateral Agent or any other Person. The provisions of Article 7, mutatis mutandis, shall apply to reimbursement the Collateral Agent. The Trustee is authorized and indemnification.
(i) directed by the Holders and the Holders by acquiring the Securities are deemed to have authorized the Trustee, as applicable, to cause the Collateral Agent to enter into and perform its obligations each Deed of Quiet Enjoyment. The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, directed by the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of Holders and the Holders in by acquiring the Collateral, including power Securities are deemed to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or have authorized the Collateral Agent, to (i) enter into each Deed of Quiet Enjoyment to which it is a party, (ii) bind the Trustee and the Holders on the terms as set forth in each such Deed of Quiet Enjoyment and (iii) perform and observe its obligations and exercise its rights and powers under each such Deed of Quiet Enjoyment, including entering into amendments, supplements and other modifications permitted by the terms of this Indenture or the applicable Deed of Quiet Enjoyment. Each Holder, by its acceptance of a Security, is deemed to have consented and agreed to the terms of each Deed of Quiet Enjoyment, as originally in effect and as amended, restated, replaced, supplemented or modified from time to time in accordance with its terms or the terms of this Indenture.
Appears in 1 contract
Samples: Indenture (Transocean Ltd.)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are Except for action expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit required of the Collateral Agent and neither the Trustee nor hereunder or under any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documentsother Credit Document, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents all cases be fully justified in refusing to which act hereunder and thereunder unless it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of further indemnified to its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 satisfaction by the proper person. The Collateral Agent may also rely upon any statement made to it orally or by telephone Lenders and believed by it to have been made by the proper personHedge Banks, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it proportionately in accordance with the advice Obligations then due and payable to each of them, against all liability and expense that may be incurred by the Collateral Agent by reason of taking or continuing to take any such counsel, accountants or expertsaction.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except Except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all provided herein or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretoother Credit Document, the Collateral Agent shall have no other duty or liability whatsoever to take any affirmative steps with respect to the Trustee or any Holder as to any collection of amounts payable in respect of the foregoingCollateral. The Collateral Agent shall incur no liability as a result of any private sale of the Collateral.
(gc) Notwithstanding anything The Lenders and the Hedge Banks hereby consent, and agree upon written request by the Collateral Agent to execute and deliver such instruments and other documents as the Collateral Agent may deem desirable to confirm such consent, to the contrary release of the Liens on the Collateral, including any release in this Indenture connection with any sale, transfer or other disposition of the Collateral or any part thereof, in accordance with the Credit Documents.
(d) The Collateral DocumentAgent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that the Collateral Agent accords its own similar property, it being understood that neither the Collateral Agent nor the Trustee any Lender or Hedge Bank shall be responsible forhave responsibility for (i) ascertaining or taking action with respect to calls, and neither makes conversions, exchanges, maturities, tenders or other matters relative to any representation regardingCollateral, the validity, effectiveness whether or priority of any of not the Collateral Documents Agent or the security interests any Lender or Liens intended Hedge Bank is deemed to be created therebyhave knowledge of such matters, or (ii) taking any necessary steps to preserve rights against any parties with respect to any Collateral.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(ie) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject shall have, with respect to the Intercreditor AgreementsHedge Banks, the Trustee is authorized duties and empowered to institute responsibilities expressly set forth in this Agreement and maintainthe other Credit Documents, or direct and no others, and the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect shall not by reason of this Agreement or enforce the Liens securing the Second Lien Obligations any other Credit Document be an agent or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement oftrustee for, or compliance withhave any fiduciary obligation to, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agentany Hedge Bank.
Appears in 1 contract
Samples: Revolving Credit Agreement (Frontier Oil Corp /New/)
Collateral Agent. (a) The Issuer hereby appoints Wilmington TrustIn addition to the rights, National Associationprotections and indemnities set forth herein, to act on behalf of the Secured Parties as the Collateral Agent shall have all the rights and protections provided in the Security Documents.
(b) Each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Indenture Indenture, the Security Documents and each of the Intercreditor Agreements and hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Security Documents and the Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture, the Security Documents and the Intercreditor Agreements, and consents and agrees to the terms of the Intercreditor Agreements and each Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms.
(c) Each of the Holders by acceptance of the Notes hereby directs the Trustee to so designate and appoint the Collateral Agent as its agent under this Indenture and the Security Documents and the Trustee hereby so designates and appoints the Collateral Documents, and Wilmington Trust, National Association Agent. The Collateral Agent agrees to act as suchsuch on the express conditions contained in this Section 12.03. The provisions of this Section 13.03 12.03 are solely for the benefit of the Collateral Agent and neither none of the Trustee Trustee, any of the Holders, the Company, the Co-Obligor nor any of the Holders Guarantors shall have any rights as a third third-party beneficiary of any of the provisions contained hereinherein other than as expressly provided hereunder. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions provision of this Indenture, the Intercreditor Agreement Agreements and the Collateral Security Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or Indenture, the Security Documents and the Intercreditor Agreements, the duties of the Collateral Documents, Agent shall be ministerial and administrative in nature and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth in this Indenture, the Collateral Documents to which it is party herein and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements Security Documents and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documentsparty, (B) agrees that the Liens on the Collateral securing the Obligations nor shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized have or be deemed to take have any trust or refrain from taking any actions in accordance other fiduciary relationship with the terms of an Trustee, any Holder, the Company, the Co-Obligor or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents and the Intercreditor AgreementAgreements or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing and subject sentence, the use of the term “agent” in this Indenture with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties, regardless (or express) obligations arising under agency doctrine of whether an Event of Default has occurred and is continuing;any applicable law.
(iid) shall not have The Collateral Agent may perform any duty to take any discretionary action or exercise any discretionary powersof its duties under this Indenture, except discretionary rights and powers expressly contemplated by the Collateral Security Documents or the Intercreditor Agreement that the Collateral Agent is required Agreements by or through receivers, agents, employees, attorneys-in-fact or through its related Persons and shall be entitled to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty advice of counsel concerning all matters pertaining to disclosesuch duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel, including counsel that is an employee of or counsel to the Company, the Co-Obligor or any Guarantor. The Collateral Agent shall not be liable responsible for the failure to disclosegross negligence or willful misconduct of any receiver, any information relating to the Issuer agent, employee, attorney-in-fact or any related Person that it selects as long as such selection was made in good faith.
(e) None of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
respective related Persons shall (ivi) shall not be liable for any action taken or not omitted to be taken by it any of them under or in connection with this Indenture, the Notes or the transactions contemplated hereby (A) with the consent or at the request of the Trustee, (B) in the absence of except for its own gross negligence or willful misconduct misconduct) or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in under or in connection with any Collateral Document, (B) the contents of any certificate, report Security Documents or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein Intercreditor Agreements or the occurrence of any Event of Default, transactions contemplated thereby (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds its own gross negligence or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenturewillful misconduct), or (ii) payments from the Collateral Agent be responsible in excess any manner to any of the amount required to be paid to Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Trustee pursuant to Article 5Company, the Trustee shall promptly turn Co-Obligor or any Guarantor or Affiliate of the same over Company, the Co-Obligor or any Guarantor, or any officer or related Person thereof, contained in this Indenture, or any Security Documents or Intercreditor Agreements, or in any certificate, report, statement or other document referred to the Collateral Agentor provided for in, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied or received by the Collateral Agent pursuant under or in connection with, this Indenture, the Notes, the Security Documents or the Intercreditor Agreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents or the Intercreditor Agreements, or for any failure of the Company, the Co-Obligor or any Guarantor or any other party to this Indenture, the Security Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective related Persons shall be under any obligation to the terms Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture and Indenture, the Notes, the Security Documents or the Intercreditor AgreementAgreements or to inspect the properties, books, or records of the Company, the Co-Obligor, any Guarantor or any of the Company’s, the Co-Obligor’s or Guarantors’ Affiliates.
(f) The Collateral Agent shall be entitled to rely, and shall be fully protected in conclusively relying, upon any writing, resolution, notice, consent, certificate, opinion, 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 no obligation whatsoever been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel that is an employee of or counsel to the Company, the Co-Obligor or any Guarantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Notes, the Security Documents or the Intercreditor Agreements, unless it shall first be directed by the Trustee acting upon the direction of the Holders of a majority in aggregate principal amount of the Notes in accordance with the terms hereof and under the Notes and, if it so requests, it shall first be indemnified to its reasonable satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this or any other indenture, the Notes, the Security Documents or the Intercreditor Agreements in accordance with a request, direction, instruction or consent of the Trustee or any the Holders of a majority in aggregate principal amount of the Holders then outstanding Notes and such request and any action taken or failure to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether act pursuant thereto shall be binding upon all of the Issuer’s Holders.
(g) The Collateral Agent shall not be deemed to have knowledge or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any notice of the rightsoccurrence of any Default or Event of Default, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect unless a Responsible Officer of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to received written notice from the Trustee or any Holder the Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as to any may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the foregoing.
(g) Notwithstanding anything to Notes in accordance with the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created therebyterms hereof.
(h) The benefitsU.S. Bank Trust Company, protections National Association and indemnities its respective Affiliates may make loans to, issue letters of credit for the Trustee hereunderaccount of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Company, the Co-Obligor, any Guarantor and their respective Affiliates as applicable of this Indenture shall apply mutatis mutandis to though it was not the Collateral Agent in hereunder and without notice to or consent of the Trustee. The Trustee and the Holders acknowledge that, pursuant to such activities, U.S. Bank Trust Company, National Association or its capacity as such, including, without limitationrespective Affiliates may receive information regarding the Company, the rights Co-Obligor, any Guarantor or their Affiliates (including information that may be subject to reimbursement confidentiality obligations in favor of the the Company, the Co-Obligor or any such Guarantor or such Affiliate) and indemnificationacknowledge that the Collateral Agent shall not be under any obligation to provide such information to the Trustee or the Holders. Nothing herein shall impose or imply any obligation on the part of U.S. Bank Trust Company, National Association to advance funds.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject may resign at any time by notice to the Intercreditor AgreementsTrustee and the Company, such resignation to be effective upon the Trustee is authorized and empowered acceptance of a successor agent to institute and maintain, or direct its appointment as Collateral Agent. If the Collateral Agent to institute and maintainresigns under this Indenture, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations Company (or the Collateral Documents Trustee, with the consent of the Company) shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to which the intended effective date of the resignation of the Collateral Agent or Trustee is a party or to prevent any impairment (as stated in the notice of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indentureresignation), and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient appoint, subject to preserve or protect the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Company pursuant to the preceding sentence, the Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor at the expense of the Company. Upon the acceptance of its interests 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 interests of term “Collateral Agent” shall mean such successor collateral agent, and the Holders in retiring Collateral Agent’s appointment, powers and duties as the Collateral, including power to institute and maintain suits or proceedings to restrain Collateral Agent shall be terminated. After the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holdersretiring Collateral Agent’s resignation hereunder, the Trustee provisions of this Section 12.03 and Section 7.07 hereof 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 AgentAgent under this Indenture.
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Collateral Agent. (a) The Issuer hereby appoints Wilmington TrustU.S. Bank National Association shall initially act as Collateral Agent and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Security Documents or the Intercreditor Agreements, National Association, to act on behalf of the Secured Parties as neither the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders its officers, directors, employees or agents shall have any rights as a third party beneficiary of be liable for failure to demand, collect or realize upon any of the provisions contained herein. Each Holder agrees that Notes Collateral or for any action taken by the Collateral Agent delay in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent doing so or shall be under any obligation to Dispose of any rights Notes Collateral upon the request of any other Person or remedies set forth herein and therein shall be authorized and binding upon all Holdersto take any other action whatsoever with regard to the Notes Collateral or any part thereof. Notwithstanding any provision to the contrary contained elsewhere in this Indenture Indenture, the Intercreditor Agreements or the Collateral Security Documents, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities responsibilities, except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and in the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Security Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documentsparty, (B) agrees that the Liens on the Collateral securing the Obligations nor shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized have or be deemed to take have any trust or refrain from taking any actions in accordance other fiduciary relationship with the terms of an Trustee, any Holder, the Issuer or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Intercreditor AgreementAgreements or the Security Documents or shall otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” or “Agent” in this Indenture, the Intercreditor Agreements and subject the Security Documents with reference to the Collateral Documents, the Collateral Agent:
(i) shall Agent is not be subject intended to connote any fiduciary or other implied duties(or express) obligations arising under agency doctrine of any applicable law. Instead, regardless such term is used merely as a matter of whether an Event of Default has occurred market custom and is continuing;
(ii) shall not have any duty intended to take any discretionary action create or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of reflect only an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Documentadministrative relationship between independent contracting parties. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by accountable only for amounts that it actually receives as a Responsible Officer result of the exercise of such powers, and neither the Collateral Agent;
(v) Agent nor any of its officers, directors, employees or agents shall not be responsible for any act or have any duty failure to ascertain act hereunder, except for its own willful misconduct or inquire gross negligence (as determined by a final, non-appealable order of a court of competent jurisdiction).
(b) The Collateral Agent is authorized and directed to (i) enter into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Security Documents, (Eii) enter into the value or Intercreditor Agreements, (iii) bind the sufficiency of any Collateral, or (F) Holders on the satisfaction of any condition terms as set forth in the Security Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Security Documents and the Intercreditor Agreements.
(c) If the Issuer or any Collateral Document, other than to confirm receipt Guarantors Incur any obligations in respect of items expressly required to be delivered any First Priority Lien Obligations at any time when no intercreditor agreement with respect thereto is in effect or at any time when Indebtedness constituting First Priority Lien Obligations entitled to the Collateral Agent; and
(vi) benefit of an existing intercreditor agreement is concurrently retired, the Issuer shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted deliver to the Collateral Agent an Officer’s Certificate so stating and requesting the Collateral Agent to enter into an Intercreditor Agreement in favor of a designated agent or representative for the benefit holders of the Secured Parties pursuant to First Priority Lien Obligations so Incurred, and the Trustee and the Collateral Documents or any lien and/or any filingAgent shall (and are hereby authorized and directed to) enter into such Intercreditor Agreement, or recording or otherwise creating, perfecting, continuing or maintaining any lien or bind the perfection thereof. By accepting Holders on the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph terms set forth therein and shall be bound by those agreements to the fullest extent permitted by lawperform and observe their obligations thereunder.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder act pursuant to so hold, and shall be entitled to enforce on behalf the instructions of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times and the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture Security Documents and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to Notes Collateral. For the Trustee or any avoidance of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related theretodoubt, the Collateral Agent shall have no discretion under this Indenture, the Intercreditor Agreements or the Security Documents and shall not be required to make or give any determination, consent, approval, request or direction without the written direction of the requisite Holders or the Trustee, as applicable. After the occurrence of an Event of Default, the Trustee may direct the Collateral Agent in connection with any action required or permitted by this Indenture, the Security Documents or the Intercreditor Agreements.
(e) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee, a Holder or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default”. The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee or the Holders of a majority in aggregate principal amount of the Securities subject to this Article 11.
(f) No provision of this Indenture or any Security Document shall require the Collateral Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Holders (or the Trustee in the case of the Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it. Notwithstanding anything to the contrary contained in this Indenture, the Intercreditor Agreements or the Security Documents, in the event the Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Notes Collateral, the Collateral Agent shall not be required to commence any such action, exercise any remedy, inspect or conduct any studies of any property or take any such other duty action if the Collateral Agent has determined that the Collateral Agent may incur personal liability as a result of the presence at, or liability whatsoever release on or from, the Notes Collateral or such property of any hazardous substances unless the Collateral Agent has received security or indemnity from the Holders in an amount and in a form all satisfactory to the Collateral Agent in its sole discretion, protecting the Collateral Agent from all such liability. The Collateral Agent shall at any time be entitled to cease taking any action described in this Section 11.09(f) if it no longer reasonably deems any indemnity, security or undertaking from the Issuer or the Holders to be sufficient.
(g) The Collateral Agent shall not be responsible in any manner to any of the Trustee or any Holder for the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents or the Intercreditor Agreements or for any failure of the Issuer, any Guarantor or any other party to this Indenture, the Security Documents or the Intercreditor Agreements to perform its obligations hereunder or thereunder. The Collateral Agent shall not be under any obligation to the Trustee or any Holder to ascertain or to inquire as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture observance or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority performance of any of the Collateral agreements contained in, or conditions of, this Indenture, the Security Documents or the security interests Intercreditor Agreements or Liens intended to be created therebyinspect the properties, books or records of the Issuer or the Guarantors.
(h) The benefitsparties hereto and the Holders hereby agree and acknowledge that the Collateral Agent shall not assume, protections be responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and indemnities unforeseeable), judgments, expenses and costs (including any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any environmental law as a result of this Indenture, the Intercreditor Agreements or the Security Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that, in the exercise of its rights under this Indenture, the Intercreditor Agreements and the Security Documents, the Collateral Agent may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Agent in the Notes Collateral and that any such actions taken by the Collateral Agent shall not be construed as or otherwise constitute any participation in the management of such Notes Collateral.
(i) Upon the receipt by the Collateral Agent of a written request of the Issuer signed by two Officers pursuant to this Section 11.09(i) (a “Security Document Order”), the Collateral Agent is hereby authorized to execute and enter into, and shall execute and enter into, without the further consent of any Holder or the Trustee, any Security Document to be executed after the Issue Date. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is a Security Document Order referred to in, this Section 11.09(i) and (ii) instruct the Collateral Agent to execute and enter into such Security Document. Any such execution of a Security Document shall be at the direction and expense of the Issuer, upon delivery to the Collateral Agent of an Officer’s Certificate and an Opinion of Counsel stating that all conditions precedent to the execution and delivery of such Security Document have been satisfied. The Holders, by their acceptance of the Securities, hereby authorize and direct the Collateral Agent to execute such Security Documents.
(j) The Collateral Agent’s resignation or removal shall be governed by provisions equivalent to Section 7.07(a), Section 7.07(b), Section 7.07(c), Section 7.07(d) and Section 7.07(f).
(k) The Collateral Agent shall be entitled to all of the protections, immunities, indemnities, rights and privileges of the Trustee hereunderset forth in this Indenture, as applicable of this Indenture and all such protections, immunities, indemnities, rights and privileges shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one roles under any Security Document or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, whether or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agentnot expressly stated therein.
Appears in 1 contract
Collateral Agent. The Purchasers hereby appoint (aor confirm the continued appointment of) The Issuer hereby appoints Wilmington TrustTail Wind Fund Ltd. as “Collateral Agent” under the Mortgage. The Collateral Agent may be removed, National Associationand a successor Collateral Agent may be appointed, by a majority-in-interest of holders of the Notes, and any Collateral Agent may resign from such position upon thirty days prior notice to the Company (which shall constitute notice to the Operating Subsidiary) and the holders of Notes. If a successor Collateral Agent does not take such position within 30 days after the retiring Collateral Agent resigns or is removed, the retiring Collateral Agent or a majority-in-interest of the holders of the Notes may petition any court of competent jurisdiction for the appointment of a successor Collateral Agent. The Collateral Agent will act or refrain from acting based on the direction of a majority-in-interest of holders of the Notes, and may take any action or refrain from taking any action as provided in the Mortgage as it shall determine in its reasonable judgment and discretion. With respect to any monies or property held by, or expended by, the Collateral Agent on behalf of the Secured Parties as the Collateral Agent under this Indenture and each holders of the Collateral Documents and Intercreditor Agreements and to exercise Notes, such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein amounts shall be authorized and binding upon all Holders. Notwithstanding any provision to allocated pro rata based on the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence principal amount of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order)Notes outstanding. The Collateral Agent shall be entitled to rely upon, and reimbursed by the holders of Notes for all reasonable expenses incurred in connection with acting as Collateral Agent under the Mortgage (provided that this shall not incur in no way affect any liability of the Operating Subsidiary or the Company under the Mortgage). The Collateral Agent may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense. No implied covenants or obligations shall be read into this Agreement or the Mortgage against Collateral Agent. Except for relying uponCollateral Agent's own willful misconduct, bad faith or gross negligence, the Collateral Agent (i) may rely and/or act upon any notice, request, certificate, consent, statement, written instrument, document or other writing request believed by it the Collateral Agent in good faith to be genuine and to have been signed or sent be executed and delivered by the proper person. The Collateral Agent may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper personperson(s), and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for assume in good faith the Trustee)authenticity, independent accountants validity and other experts selected by it, effectiveness thereof and shall not be liable for obligated to make any action taken investigation or not taken by it in accordance with determination as to the advice truth and accuracy of any such counselinformation contained therein, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for the acts or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any omissions of the covenants, agreements other parties hereto or other terms or conditions set forth therein or the occurrence holders of any Event Notes. In consideration of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securitiesappointment as the Collateral Agent, agrees each of the Purchasers (and any subsequent holder of the Notes) jointly and severally agree to indemnify the Collateral Agent against, and hold the Collateral Agent harmless from, all costs, damages, expenses (including reasonable attorney's fees and disbursements) and liabilities that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act may incur or sustain in accordance connection with the terms thereof. The serving as Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act Mortgage, unless such costs, damages, expenses and liabilities are caused by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent's own willful misconduct, bad faith or gross negligence.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Samples: Purchase Agreement (Nexmed Inc)
Collateral Agent. (a) The Issuer Each Bank and the Administrative Agent ---------------- hereby irrevocably appoints Wilmington Trustand authorizes, National Associationand hereby agrees that it will require any transferee of any of its interest in its Loans and in its Notes irrevocably to appoint and authorize, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements to take such actions as its agent on its behalf and to exercise such powers and perform such duties under the Security Documents as are expressly delegated to by the terms thereof, together with such powers as are reasonably incidental thereto. Neither the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders its directors, officers, employees, or agents shall have be liable for any rights as a third party beneficiary of action taken or omitted to be taken by it or them under any of the provisions contained hereinSecurity Documents or in connection therewith, except for its or their own gross negligence or willful misconduct as determined by a final non-appealable judicial order of a court of competent jurisdiction. Each Holder agrees that any action taken by the The Collateral Agent in accordance with may execute any of its duties under the provisions of this Indenture, the Intercreditor Agreement Loan Documents by or through agents or attorneys selected by it using reasonable care and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon entitled to advice of counsel concerning all Holders. Notwithstanding any provision matters pertaining to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreementssuch duties. The Collateral Agent shall not be liable responsible to any Bank for the negligence or misconduct of any action taken agents or not taken attorneys selected by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 personwith reasonable care. The Collateral Agent may also rely upon any statement made treat each Bank, or the Person designated in the last notice filed with the Administrative Agent under Section 9.3 of this Agreement, as the holder of all of the interests of such Bank in its Loans and in its Notes until written notice of transfer, signed by such Bank (or the Person designated in the last notice filed with the Administrative Agent) and by the Person designated in such written notice of transfer, in form and substance satisfactory to it orally or by telephone and believed by it to the Administrative Agent, shall have been made by filed with the proper person, and shall not incur any liability for relying thereonAdministrative Agent. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, it and shall not be liable for any action taken or not taken suffered by it in accordance with good faith in reliance thereon. The Collateral Agent shall not be under any duty to examine, inquire into, or pass upon the advice validity, effectiveness, or genuineness of any such counselSecurity Document or other document, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documentscommunication furnished pursuant thereto or in connection therewith, the Trustee and the Collateral Agent shall be entitled to assume that they are authorized valid, effective, and empowered genuine, have been signed or sent by the proper parties, and are what they purport to receive for the benefit of the Holders be. The Collateral Agent shall be entitled to use its discretion with respect to exercising or refraining from exercising any funds collected rights which may be vested in it by, and with respect to taking or distributed refraining from taking any action or actions which it may be able to take under the Collateral Documents and Intercreditor Agreements to which or in respect of, any Security Document, unless the Collateral Agent shall have been instructed by the Required Lenders to exercise or Trustee is a party and to make further distributions of refrain from exercising such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement rights or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documentssuch action, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement provided that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, exercise any information relating to the Issuer or rights under any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at Security Document without the request of the TrusteeRequired Lenders unless time is of the essence, (B) in which case, such action can be taken. The Collateral Agent shall incur no liability under or in respect of any Security Document with respect to anything which it may do or refrain from doing in the absence reasonable exercise of its own judgment or which may seem to it to be necessary or desirable in the circumstances, except for its gross negligence or willful misconduct or (C) in reliance on as determined by a certificate final, non-appealable judicial order of an authorized officer a court of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Documentcompetent jurisdiction. The Collateral Agent shall not be deemed liable to the Banks or to any Bank in acting or refraining from acting under any Security Document in accordance with the instructions of the Required Lenders, and any action taken or failure to act pursuant to such instructions shall be binding on all Banks. The Collateral Agent shall not be obligated to have actual knowledge of take any Event of Default unless and until written notice describing such Event of Default action which is given by contrary to law or which would in its reasonable opinion subject it to liability. All indemnity provisions herein that pertain to the Trustee or the Issuer and received by a Responsible Officer of Administrative Agent shall apply equally to the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) . Each Bank and the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) Administrative Agent hereby agree that the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported Obligations are to be created secured pari ---- passu with all Obligations under the ATS Facility B Loan Agreement and that all ----- Collateral now or hereafter delivered as security for the Obligations shall be held by the Collateral Documents, Agent (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi, if received by any Bank) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Security Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Collateral Agent. (a) The Issuer Guarantor hereby irrevocably appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent as its agent under this Indenture Agreement and each of authorizes the Collateral Documents and Intercreditor Agreements Agent to take such actions on its behalf and to exercise such powers and perform such duties as are expressly delegated to such Agent by this Agreement, together with such actions and powers as are reasonably incidental thereto. The Collateral Agent acknowledges the Guaranty Agreement, with the understanding that the Collateral Agent by assumes no obligations under the terms of this Indenture and the Collateral DocumentsGuaranty Agreement, and Wilmington Trust, National Association agrees to act as suchshall not be liable thereunder. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral No Agent shall not have any duties or responsibilities obligations except those expressly set forth in this Indentureherein. Without limiting the generality of the foregoing, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby and that such Agent is required to exercise in writing by the Guarantor and for which the Agent is indemnified to is satisfaction, and (c) except as expressly set forth herein, no Agent shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower that is communicated to or obtained by the Person serving as Agent or any of their Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Guarantor or in the absence of its own gross negligence or willful misconduct misconduct. No Agent shall be deemed to have knowledge of any Event of Default unless and until written notice thereof is given to such Agent by the Borrower or the Guarantor at its Corporate Trust Office and referencing this Agreement and specifying the Event of Default, and no Agent shall be responsible for or have any duty to ascertain or inquire into (as determined by a court i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of competent jurisdiction any certificate, report or other document delivered hereunder or thereunder or in a finalconnection herewith or therewith, non-appealable order)(iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in this Agreement, other than to confirm receipt of any items expressly required to be delivered to such Agent. 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 personPerson. The Collateral Agent also may also rely upon any statement made to it orally or by telephone and believed by it to have been be made by the proper personPerson, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the TrusteeBorrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
. The Collateral Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents (bincluding any branch, other office, Affiliate or nominee of such Agent) Subject to the appointed by such Agent. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the Intercreditor Agreements preceding paragraphs shall apply to any such sub-agent and to the Collateral DocumentsRelated Parties of the Agents and any such sub-agent, the Trustee and the shall apply to their respective activities in connection with their activities as Agent. The Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for negligence by an agent appointed with due care. The Collateral Agent may resign at any time by notifying the failure Guarantor and the Borrower. Upon any such resignation, the Guarantor shall have the right to discloseappoint a successor and, any information relating except if an Event of Default shall have occurred and be continuing at the time of such resignation, that is reasonably satisfactory to the Issuer or Borrower, provided that, if the Borrower shall fail to provide its consent to any successor proposed to the Borrower in writing by the Guarantor within ten days after receipt of such proposal, such successor shall be deemed to be reasonably satisfactory to the Borrower. The Collateral Agent’s resignation shall not be effective until a successor Collateral Agent shall have been appointed by the Guarantor and shall have accepted such appointment; provided that, if no such successor shall have been so appointed by the Guarantor and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its Affiliates that is communicated resignation, then the retiring Collateral Agent may on behalf of the Guarantor appoint a successor Collateral Agent meeting the qualifications set forth above, or petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or obtained retired) Agent, and the retiring Agent, shall be discharged from its duties and obligations hereunder (if not already discharged therefrom as provided above in this paragraph). The fees payable by the person serving Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent’s resignation hereunder, the provisions of this Section shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Agent. The Guarantor acknowledges that it has, independently and without reliance upon the Collateral Agent and based on such documents and information as it has deemed appropriate, made its own decision to enter into this Agreement. The Guarantor also acknowledges that it will, independently and without reliance upon the Collateral Agent and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its Affiliates possession or control or in the possession or control of any capacity;
(iv) agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto. The Collateral Agent shall not be liable responsible for filing any action taken financing or not taken by it (A) with continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the consent or at the request perfection of the Trustee, (B) any security interest in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral DocumentCollateral. The Collateral Agent shall be deemed not to have actual knowledge exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which other collateral agents accord similar property. The Collateral Agent shall not be liable or responsible for any loss or diminution in the value of any Event of Default unless and until written notice describing such Event the Collateral, including by reason of Default is given the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Trustee Collateral Agent in good faith. The Collateral Agent shall not be responsible for: (i) the existence, genuineness or value of any of the Issuer and received Collateral, (ii) the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by a Responsible Officer operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes gross negligence, bad faith or willful misconduct on the part of the Collateral Agent;
, (iii) the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iv) the validity of the title of the Borrower to the Collateral, (v) insuring the Collateral, (vi) the payment of taxes, charges, assessments or Liens upon the Collateral, (vii) filing of financing or continuation statements or (viii) otherwise as to the maintenance of the Collateral. The Collateral Agent shall not be responsible for or have any no duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) as to the performance or observance of any of the covenantsterms of this Agreement by other parties to this Agreement or related transaction documents. The Collateral Agent shall not be liable for any action taken, agreements suffered, or other terms omitted to be taken by it in good faith and reasonably believed by it to be authorized or conditions set forth therein within the discretion or the occurrence rights or powers conferred upon it by this Agreement. The Collateral Agent shall not be deemed to have notice of any Event of Default, (D) Default unless the validity, enforceability, effectiveness or genuineness Collateral Agent has received written notice of any Collateral Document or any other agreementevent that constitutes an Event of Default at the Corporate Trust Office, instrument or documentand such notice references this Agreement. The rights, or the creationprivileges, perfection or priority of any Lien purported to be created by the Collateral Documentsprotections, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered immunities and benefits given to the Collateral Agent; , including its right to be indemnified, are extended to, and shall be enforceable by, the Collateral Agent in each of its capacities hereunder, and each officer, director, employee, and agent, custodian and other Person employed to act hereunder. The Collateral Agent may request that the Borrower deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Agreement. Any power conferred on the Collateral Agent to enforce remedies is permissive and
(vi) , unless instructed by the Guarantor pursuant to the terms hereof, shall not be deemed to be a duty, rather than a right. The Collateral Agent shall not have any duty to exercise any remedy if it has not been directed in writing to do so by the Guarantor and provided with an indemnity reasonably satisfactory to it. The Collateral Agent shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the request or direction of the Guarantor pursuant to this Agreement, unless the Guarantor shall have offered to the Collateral Agent security or indemnity satisfactory to the Collateral Agent against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction. In no event shall the Collateral Agent be responsible or liable for creatingany failure or delay in the performance of its obligations hereunder arising out of or caused by, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so holdindirectly, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in forces beyond its capacity as suchcontrol, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one strikes, work stoppages, accidents, acts of war or more co-Collateral Agents as it deems necessary terrorism, civil or appropriate.
(j) Subject to the Intercreditor Agreementsmilitary disturbances, the Trustee is authorized and empowered to institute and maintain, nuclear or direct natural catastrophes or acts of God. Nothing herein shall require the Collateral Agent to institute expend or risk its own funds, unless appropriate indemnities are provided hereunder. Each party agrees that the Guarantor may appoint other Agents with (so long as no Event of Default shall have occurred and maintain, such suits and proceedings as it may deem expedient to protect or enforce be continuing) the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation prior written consent of the Collateral Documents Borrower, not to be unreasonably withheld or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agentdelayed.
Appears in 1 contract
Samples: Pledge and Security Agreement (Petersen Energia Inversora, S.A.)
Collateral Agent. (a) The Issuer 12.1 Each Purchaser hereby appoints Wilmington TrustLaurus Master Fund, National AssociationLtd. as collateral agent for such Purchaser under this Agreement and all Related Agreements (in such capacity, to act on behalf the “Collateral Agent”) solely for purposes of administering the Secured Parties as Collateral and enforcing the terms of (and exercising remedies) under this Agreement and all Related Agreements and for no other purpose whatsoever. Each Purchaser hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under this Indenture Agreement and each of the Collateral Documents and Intercreditor Related Agreements and to exercise such powers and perform such duties hereunder and thereunder as are expressly specifically delegated to or required of the Collateral Agent by the terms of this Indenture hereof and the Collateral Documents, thereof and Wilmington Trust, National Association agrees to act such powers as suchare incidental thereto. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any no duties or responsibilities except those expressly set forth in this IndentureAgreement. Nothing in this Agreement, expressed or implied, is intended to or shall be so construed as to impose upon the Collateral Agent any obligations except as expressly set forth herein. The Collateral Agent shall not have, nor shall it be deemed to have, any fiduciary relationship with any Purchaser, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Related Agreement or otherwise exist against the Collateral Agent.
12.2 Each Purchaser holds harmless the Collateral Agent for any costs, expenses, liability, damage, claim or losses in connection with or arising out of the transactions contemplated under this Agreement and the Related Agreements except to the extent such cost, expense, liability, damage, claim or loss arises from the Collateral Agent’s gross negligence or willful misconduct.
12.3 The Collateral Agent may execute any of its duties under this Agreement, the Collateral Documents Note or any other Related Agreement by or through agents, employees or attorneys-in-fact and shall be entitled to which it is party advice of counsel and in the Intercreditor Agreementsother consultants or experts concerning all matters pertaining to such duties. The Collateral Agent shall not be liable responsible for the negligence or misconduct of any action taken agent or not taken by attorney-in-fact that it selects in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or expertsmisconduct.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject to the Intercreditor Agreements, the Trustee is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents to which the Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral Agent.
Appears in 1 contract
Samples: Securities Purchase Agreement (Bio Key International Inc)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, Trustee shall act as Collateral Agent and shall be authorized to act on behalf of the Secured Parties appoint co-Collateral Agents as necessary in its sole discretion. Neither the Collateral Agent under this Indenture and each nor any of its respective officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral Documents and Intercreditor Agreements and or for any delay in doing so or shall be under any obligation to exercise such powers and perform such duties as are expressly delegated sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as suchor any part thereof. The provisions of this Section 13.03 are solely for the benefit of powers conferred on the Collateral Agent hereunder are solely to protect the Collateral Agent's interest in the Collateral and neither the Trustee nor shall not impose any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by duty upon the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the to exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreementssuch powers. The Collateral Agent shall not be liable accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any action taken act or not taken by it in the absence of failure to act hereunder, except for its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or expertsmisconduct.
(b) Subject The Trustee, as Collateral Agent, is authorized and directed to (i) enter into the provisions of Security Documents (including, without limitation, the Intercreditor Agreements Agreement) (ii) bind the Holders on the terms as set forth therein and (iii) perform and observe its obligations under the Collateral DocumentsSecurity Documents (including, without limitation, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this IndentureAgreement).
(c) Each Holder and other Secured Party hereby agrees that If the Issuers (Ai) it will be bound by and will take incur Indebtedness constituting Credit Agreement Obligations at any time when no actions contrary Intercreditor Agreement is in effect or at any time when Indebtedness constituting Credit Agreement Obligations entitled to the provisions benefit of any such intercreditor agreement or other agreements or documentsan existing Intercreditor Agreement is concurrently retired, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (Cii) agrees that the Trustee and deliver to the Collateral Agent are authorized an Officers' Certificate so stating and requesting the Collateral Agent to take or refrain from taking any actions in accordance with the terms of enter into an Intercreditor Agreement. Without limiting Agreement in favor of a designated agent or representative for the generality holders of the foregoing and subject to the Collateral DocumentsIndebtedness so incurred, the Collateral Agent:Agent shall (and is hereby authorized and directed to) enter into such Intercreditor Agreement, bind the Holders on the terms set forth therein, and perform and observe its obligations thereunder.
(d) If (i) shall not be subject to the Issuers at any fiduciary or other implied dutiestime incur any Indebtedness constituting Other Second-Lien Obligations, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action the indenture or exercise any discretionary powersagreement governing such Indebtedness provides that, except discretionary rights and powers expressly contemplated by notwithstanding the Collateral Documents date, manner or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall notorder of grant, except as expressly set forth in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer attachment or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge perfection of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest Liens granted to the Collateral Agent under the Security Documents (the "Liens Securing Note Obligations") or granted to the holders of Other Second-Lien Obligations or any agent or representative for the benefit holders of Other Second-Lien Obligations (the Secured Parties pursuant "Liens Securing Other Second-Lien Obligations"), the Liens Securing Note Obligations and the Liens Securing Other Second-Lien Obligations shall be of equal dignity, priority and rank, (iii) the Issuers deliver to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph Agent an Officer's Certificate so stating and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees requesting that the Collateral Agent shall execute assign or transfer the Liens Securing Note Obligations to a Common Collateral Agent identified therein and (iv) the Issuers deliver to the Collateral Documents to which it Agent and the Common Collateral Agent an Opinion of Counsel stating that, in the opinion of such counsel, the Common Collateral Agent is a party empowered and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with obligated (on substantially the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed by each Holder applicable to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights Intercreditor Agreement) to reimbursement hold the Liens Securing Note Obligations and indemnification.
(i) The Collateral Agent is authorized all Liens Securing Other-Second Lien Obligations and empowered all proceeds of all such Liens for the equal and ratable benefit of the holders of all Obligations secured thereby and further confirming as to appoint one or more co-Collateral Agents as it deems necessary or appropriate.
(j) Subject all such Liens each of the matters referred to in Section 10.02(b)(1), giving effect to the Intercreditor Agreementsassignment or transfer requested in such Officer's Certificate, then (A) the Trustee is authorized Liens Securing Note Obligations shall be of equal dignity, priority and empowered to institute rank with all such Liens Securing Other Second-Lien Obligations and maintain, or direct (B) the Collateral Agent to institute and maintain, such suits and proceedings as it may deem expedient to protect shall assign or enforce transfer the Liens securing Securing Note Obligations to the Second Lien Obligations or the Collateral Documents to which the Common Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or as requested in violation of the Collateral Documents or the Intercreditor Agreements to which the Collateral Agent or Trustee is a party or this Indenture, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral AgentOfficer's Certificate.
Appears in 1 contract
Samples: Indenture (Foamex Capital Corp)
Collateral Agent. (a) The Issuer hereby appoints Wilmington Trust, National Association, to act on behalf of the Secured Parties as the Collateral Agent under this Indenture and each of the Collateral Documents and Intercreditor Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Documents, and Wilmington Trust, National Association agrees to act as such. The provisions of this Section 13.03 are solely for the benefit of the Collateral Agent and neither the Trustee nor any of the Holders shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the Collateral Documents, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Indenture, the Collateral Documents to which it is party and in the Intercreditor Agreements. The Collateral Agent shall not be liable for any action taken or not taken by it in the absence of its own gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable order). 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 may also rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Trustee), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
(b) Subject to the provisions of the Intercreditor Agreements and the Collateral Documents, the Trustee and the Collateral Agent are authorized and empowered to receive for the benefit of the Holders any funds collected or distributed under the Collateral Documents and Intercreditor Agreements to which the Collateral Agent or Trustee is a party and to make further distributions of such funds to Holders according to the provisions of this Indenture.
(c) Each Holder and other Secured Party hereby agrees that (A) it will be bound by and will take no actions contrary to hold the provisions of any such intercreditor agreement or other agreements or documents, (B) agrees that the Liens on the Collateral securing the Obligations shall be subject in all respects to the provisions thereof and (C) agrees that the Trustee and the Collateral Agent are authorized to take or refrain from taking any actions in accordance with the terms of an Intercreditor Agreement. Without limiting the generality of the foregoing and subject to the Collateral Documents, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Collateral Documents or Intercreditor Agreement that the Collateral Agent is required to exercise;
(iii) shall not, except as expressly set forth security interests in the Collateral Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Affiliates that is communicated to or obtained by the person serving as the Collateral Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it (A) with the consent or at the request of the Trustee, (B) in the absence of its own gross negligence or willful misconduct or (C) in reliance on a certificate of an authorized officer of the Issuer stating that such action is permitted by the terms of the Intercreditor Agreement or any other Collateral Document. The Collateral Agent shall be deemed not to have actual knowledge of any Event of Default unless and until written notice describing such Event of Default is given by the Trustee or the Issuer and received by a Responsible Officer of the Collateral Agent;
(v) shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Collateral Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein or the occurrence of any Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Collateral Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition set forth in any Collateral Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; and
(vi) shall not be responsible or liable for creating, preserving, perfecting or validating the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Documents or any lien and/or any filing, or recording or otherwise creating, perfecting, continuing or maintaining any lien or the perfection thereof. By accepting the Securities, each Holder will be deemed to have irrevocably agreed to the foregoing provisions of the prior paragraph and shall be bound by those agreements to the fullest extent permitted by law.
(d) Subject to the provisions of the applicable Collateral Document, each Holder, by its acceptance of the Securities, agrees that the Collateral Agent shall execute and deliver under the Collateral Documents to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any agent) and is directed as contemplated by each Holder to so hold, and shall be entitled to enforce on behalf of the Holders on the Collateral for their benefit, subject to the provisions of the Intercreditor Agreement. Holders may not, individually or collectively, take any direct action to enforce any rights in their favor under the Collateral Documents. The Holders may only act by written instruction to the Trustee, subject to the terms hereof, which shall instruct the Collateral Agent.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except and any and all proceeds thereof, for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 5benefit of, the Trustee shall promptly turn the same over to the Collateral AgentSecured Parties, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture and the Intercreditor Agreement.
(f) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Issuer or Guarantor or is cared for, protected, or insured or has been encumbered, or that without limiting the Collateral Agent’s Liens have been properly or sufficiently or lawfully createdrights, perfectedincluding under this Section 17.02, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all act in preservation of the Issuer’s or any Guarantor’s property constituting Collateral has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or security interest in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(g) Notwithstanding anything to the contrary in this Indenture or any Collateral Document, neither the Collateral Agent nor the Trustee shall be responsible for, and neither makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(h) The benefits, protections and indemnities of the Trustee hereunder, as applicable of this Indenture shall apply mutatis mutandis to the Collateral Agent in its capacity as such, including, without limitation, the rights to reimbursement and indemnification.
(i) . The Collateral Agent is authorized and empowered to appoint one or more co-Collateral Agents as it deems necessary or appropriate; provided, however, that no Collateral Agent hereunder shall be personally liable by reason of any act or omission of any other Collateral Agent hereunder.
(jb) Subject Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness, or sufficiency of the Collateral Documents, for the creation, perfection, priority, sufficiency or protection of any Lien, including without limitation not being responsible for payment of any taxes, charges or assessments upon the Collateral or otherwise as to the Intercreditor Agreementsmaintenance of the Collateral, or for any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Collateral Documents or any delay in doing so. Neither the Trustee nor the Collateral Agent nor any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for making any filings or recordings to perfect or maintain the perfection of the Collateral Agent’s Lien in the Collateral, including without limitation, the filing of any UCC financing statements, continuation statements, or any filings with respect to the U.S. Patent and Trademark Office or U.S. Copyright Office.
(c) The Collateral Agent will be subject to such directions as may be given to it by the Trustee from time to time (as required or permitted by this Indenture). Except as directed by the Trustee or any representatives of the Trustee as required or permitted by this Indenture, and only if indemnified to its satisfaction, the Collateral Agent will not be obligated:
(i) to act upon direction purported to be delivered to it by any Person;
(ii) to foreclose upon or otherwise enforce any Lien created under the Collateral Documents; or
(iii) to take any other action whatsoever with regard to any or all of the Liens, Collateral Documents or Collateral. The Collateral Agent will be accountable only for amounts that it actually receives as a result of the enforcement of the Liens or Collateral Documents.
(d) In acting as Collateral Agent hereunder and under the Collateral Documents, the Collateral Agent shall be entitled to conclusively rely upon and enforce each and all of the rights, privileges, immunities, indemnities and benefits of the Trustee under Article 7; provided that in that context any references in such Article 7 of this Indenture to “Trustee” shall be references to “Collateral Agent” and references to “negligence” shall be references to “gross negligence”. Without limiting the immediately preceding sentence, the Collateral Agent shall be entitled to compensation, reimbursement and indemnity in the same manner as the Trustee as provided in Section 7.06.
(e) At all times when the Trustee is authorized and empowered not itself the Collateral Agent, the Company will deliver to institute and maintain, or direct the Trustee copies of all Collateral Documents delivered to the Collateral Agent and copies of all documents delivered to institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Second Lien Obligations or the Collateral Documents Agent pursuant to the Collateral Documents.
(f) Notwithstanding any provision to the contrary contained elsewhere in the Indenture and the Collateral Documents, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Collateral Documents, to which the Collateral Agent or Trustee is a party party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, or any other party, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into the Indenture and the Collateral Documents, or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in the Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(g) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Collateral Agent shall have received written notice from the Trustee or the Company referring to the Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.”
(h) No provision of this Indenture or any Collateral Document shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to prevent take or omit to take any impairment action hereunder or thereunder or take any action at the request or direction of Holders or the Trustee unless it shall have received indemnity satisfactory to the Collateral Agent against potential costs and liabilities incurred by the Collateral Agent relating thereto. Notwithstanding anything to the contrary contained in this Indenture or the Collateral Documents, in the event the Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Collateral Agent shall not be required to commence any acts such action or exercise any remedy or take any such other action if the Collateral Agent has determined that the Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances. The Collateral Agent shall at any time be unlawful entitled to cease taking any action described in this clause (h) if it no longer reasonably deems any indemnity, security or in violation undertaking from the Company or the Holders to be sufficient.
(i) The parties hereto and the Holders hereby agree and acknowledge that neither the Collateral Agent nor the Trustee shall assume, be responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs (including but not limited to, any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any environmental law as a result of the Indenture, the Collateral Documents or any actions taken pursuant hereto or thereto. Further, the Intercreditor Agreements to which parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture and the Collateral Agent or Trustee is a party or this IndentureDocuments, and such suits and proceedings as the Trustee or the Collateral Agent may deem expedient hold or obtain indicia of ownership primarily to preserve or protect its interests and the interests security interest of the Holders Collateral Agent in the Collateral and that any such actions taken by the Collateral Agent shall not be construed as or otherwise constitute any participation in the management of such Collateral. In the event that the Collateral Agent is required to acquire title to an asset for any reason, including power or take any managerial action of any kind in regard thereto, in order to institute carry out any obligation for the benefit of another, which in the Collateral Agent’s sole discretion may cause it to be considered an “owner or operator” under the provisions of the Comprehensive Environmental Response, Compensation and maintain suits Liability Act (“CERCLA”), 42 U.S.C. §9601, et seq., or proceedings otherwise cause it to restrain incur liability under CERCLA or any other federal, state or local law, the enforcement Collateral Agent and reserves the right, instead of taking such action, to either resign or compliance with arrange for the transfer of the title or control of the asset to a court-appointed receiver. Neither the Collateral Agent nor the Trustee shall be liable to any legislative person for any environmental claims or other governmental enactmentcontribution actions under any federal, state or local law, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests regulation by reason of Holders, the Trustee or the Collateral Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment.
Appears in 1 contract
