Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party acknowledges that U.S. Collateral Agent shall not be the trustee of any U.S. Secured Party. U.S. Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement or the U.S. Security Documents, and U.S. Collateral Agent shall not by reason of this Agreement or the U.S. Security Documents be a trustee for any U.S. Secured Party or have any other fiduciary obligation to any U.S. Secured Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. Collateral Agent shall not be responsible to any U.S. Secured Party for any recitals, statements, representations or warranties contained in this Agreement or any Financing Document or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing Documents, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents or any other document referred to or provided for therein or any Lien under the U.S. Security Documents or the perfection or priority of any such Lien or for any failure by any other party to perform any of its respective obligations under any of the Financing Documents. U.S. Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither U.S. Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from its or their own gross negligence or willful misconduct. (b) U.S. Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telex, telecopy, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person or persons, and upon advice and statements of legal counsel (including counsel to the Obligors or any of their subsidiaries), independent accountants and other experts selected by U.S. Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting upon. Without limiting any rights of U.S. Collateral Agent hereunder, U.S. Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligees, and such instructions of Requisite Obligees, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Parties. (c) Each of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco and each U.S. Pledgor (collectively, the “Indemnifying Parties”) agrees, jointly and severally, to indemnify U.S. Collateral Agent for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against U.S. Collateral Agent in any way relating to or arising out of any of this Agreement, the U.S. Security Documents, the Financing Documents or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof; provided, however, that no such Indemnifying Party shall be liable for any of the foregoing to the extent they are finally judicially determined to have resulted from the gross negligence or willful misconduct of U.S. Collateral Agent. (d) Except for action expressly required of U.S. Collateral Agent hereunder, U.S. Collateral Agent shall, notwithstanding anything to the contrary in Section 7(c) hereof, in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its satisfaction by the U.S. Secured Parties (or the lenders or holders represented thereby) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. (e) Except as expressly provided herein and in the U.S. Security Documents, U.S. Collateral Agent shall have no duty to take any affirmative steps with respect to the collection of amounts payable in respect of the U.S. Collateral. U.S. Collateral Agent shall incur no liability to any U.S. Secured Party as a result of any sale of any U.S. Collateral at any private sale. (f) (i) U.S. Collateral Agent may resign at any time by giving at least five (5) days’ notice thereof to the U.S. Secured Parties (such resignation to take effect as hereinafter provided) and U.S. Collateral Agent may be removed as U.S. Collateral Agent at any time by Requisite Obligees. In the event of such resignation or removal of U.S. Collateral Agent, Requisite Obligees shall thereupon have the right to appoint a successor U.S. Collateral Agent. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) days after the notice of the intent of U.S. Collateral Agent to resign, then the retiring U.S. Collateral Agent may, on behalf of the other U.S. Secured Parties, appoint a successor U.S. Collateral Agent. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(i) shall be a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000.
Appears in 2 contracts
Samples: Credit Agreement (Crown Holdings Inc), Intercreditor and Collateral Agency Agreement (Crown Holdings Inc)
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Euro Secured Party acknowledges that U.S. Euro Collateral Agent shall not be the trustee of any U.S. Euro Secured Party. U.S. Euro Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement or the U.S. Euro Security Documents, and U.S. Euro Collateral Agent shall not by reason of this Agreement or the U.S. Euro Security Documents be a trustee for any U.S. Euro Secured Party or have any other fiduciary obligation to any U.S. Euro Secured Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. Euro Collateral Agent shall not be responsible to any U.S. Euro Secured Party for any recitals, statements, representations or warranties contained in this Agreement or any Financing Document or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing Documents, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents or any other document referred to or provided for therein or any Lien under the U.S. Euro Security Documents or the perfection or priority of any such Lien or for any failure by any other party to perform any of its respective obligations under any of the Financing Documents. U.S. Euro Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither U.S. Euro Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewithherewith (including as mandataire for purposes of the fifth paragraph of subsection 3(a)), except for actions that are finally judicially determined to have resulted from its or their own gross negligence or willful misconduct.
(b) U.S. Euro Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telex, telecopy, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person or persons, and upon advice and statements of legal counsel (including counsel to the Obligors Crown Euroco or any of their its subsidiaries), independent accountants and other experts selected by U.S. Euro Collateral Agent and shall in all cases be fully protected in acting or refraining from acting so acting upon. Without limiting any rights of U.S. Euro Collateral Agent hereunder, U.S. Euro Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligees, and such instructions of Requisite Obligees, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Euro Secured Parties.
(c) Each of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco and each U.S. Euro Pledgor (collectively, the “Indemnifying Parties”) agrees, jointly and severally, to indemnify U.S. Euro Collateral Agent for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against U.S. Euro Collateral Agent (including as mandataire for purposes of the fifth paragraph of subsection 3(a)) in any way relating to or arising out of any of this Agreement, the U.S. Euro Security Documents, the Financing Documents or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof; provided, however, that no such Indemnifying Party shall be liable for any of the foregoing to the extent they are finally judicially determined to have resulted from the gross negligence or willful misconduct of U.S. Euro Collateral Agent.
(d) Except for action expressly required of U.S. Euro Collateral Agent hereunder, U.S. Euro Collateral Agent shall, notwithstanding anything to the contrary in Section 7(c9(c) hereof, in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Euro Security Documents (including as mandataire for purposes of the fifth paragraph of subsection 3(a)) unless it shall be further indemnified to its satisfaction by the U.S. Euro Secured Parties (or the lenders or holders represented thereby) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.
(e) Except as expressly provided herein and in the U.S. Euro Security Documents, U.S. Euro Collateral Agent shall have no duty to take any affirmative steps with respect to the collection of amounts payable in respect of the U.S. Euro Collateral. U.S. Euro Collateral Agent shall incur no liability to any U.S. Euro Secured Party as a result of any sale of any U.S. Euro Collateral at any private sale.
(f) (i) U.S. Euro Collateral Agent may resign at any time by giving at least five (5) days’ notice thereof to the U.S. Euro Secured Parties (such resignation to take effect as hereinafter provided) and U.S. Euro Collateral Agent may be removed as U.S. Euro Collateral Agent at any time by Requisite Obligees. In the event of such resignation or removal of U.S. Euro Collateral Agent, Requisite Obligees shall thereupon have the right to appoint a successor U.S. Euro Collateral Agent. If no successor U.S. Euro Collateral Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) days after the notice of the intent of U.S. Euro Collateral Agent to resign, then the retiring U.S. Euro Collateral Agent may, on behalf of the other U.S. Euro Secured Parties, appoint a successor U.S. Euro Collateral Agent. Any successor U.S. Euro Collateral Agent appointed pursuant to this clause (f)(i) shall be a commercial bank organized under the laws of a member state of the United States of America or any state thereof European Union and having a combined capital and surplus of at least $€500,000,000.
Appears in 2 contracts
Samples: Intercreditor and Collateral Agency Agreement, Credit Agreement (Crown Holdings Inc)
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party acknowledges that U.S. Collateral Agent shall not be the trustee of any U.S. Secured Party. U.S. Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement Agreement, the Collateral Documents or the U.S. Security DocumentsLoan Guaranties, and U.S. Collateral Agent shall not by reason of this Agreement Agreement, the Collateral Documents or the U.S. Security Documents Loan Guaranties be a trustee for any U.S. Secured Party or have any other fiduciary obligation to any U.S. Secured Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. Collateral Agent shall not be responsible to any U.S. Secured Party for any recitals, statements, representations or warranties contained in this Agreement Agreement, the Credit Agreement, the Other Permitted Credit Exposure Documents or any other documents evidencing or relating to any Other Permitted Credit Exposure, the Permitted Secured Debt Documents, the Collateral Documents or the Loan Guaranties (collectively, the “Financing Document Agreements”) or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing DocumentsAgreements, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents Agreements or any other document referred to or provided for therein or any Lien created under the U.S. Security Collateral Documents or the perfection or priority of any such Lien or for any failure by any other party Loan Party to perform any of its respective obligations under any of the Financing DocumentsAgreements. U.S. Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-in- fact selected by it with reasonable care. Neither U.S. Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from its or their own gross negligence or willful misconductmisconduct (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(b) U.S. Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telex, telecopy, telegram telegram, cable or cableother electronic transmission) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person Person or personsPersons, and upon advice and statements of legal counsel (including counsel to the Obligors Holdings or any Subsidiary of their subsidiariesHoldings), independent accountants and other experts selected by U.S. Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting uponAgent. Without limiting As to any rights of U.S. Collateral Agent hereundermatters not expressly provided for by this Agreement, U.S. Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligees, and such instructions of Requisite Obligees, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Parties.
(c) Each The Lender Agent on behalf of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco the Lenders and each U.S. Pledgor Other Permitted Credit Exposure Holder (collectively, the “Paying Indemnifying Parties”) agreesagrees that the Secured Parties represented by it shall indemnify Collateral Agent, jointly and severallyratably in accordance with the amount of the obligations held by such Secured Parties secured by the Collateral Documents, to indemnify U.S. the extent neither reimbursed by any Grantor under the Credit Agreement or any Collateral Agent Document nor reimbursed out of any Proceeds pursuant to Section 3 hereof and the corresponding provisions of the Collateral Documents for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against U.S. Collateral Agent in any way relating to or arising out of any of this Agreement, the U.S. Security Documents, the Financing Documents Agreements or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof; provided, however, that no such Indemnifying Secured Party shall be liable for any of the foregoing to the extent they are finally judicially determined to have resulted arise from the gross negligence or willful misconduct of U.S. Collateral AgentAgent (as determined by a court of competent jurisdiction in a final and non-appealable judgment). Each Permitted Secured Debt Representative, on behalf of such Permitted Secured Debt Representative and the holders of Permitted Secured Debt in respect of which such Permitted Secured Debt Representative is the representative, agrees that, as provided in Section 3 hereof, Section 12 of the Pledge Agreement and Section 18 of the Security Agreement, deductions from distributions otherwise due with respect to such Permitted Secured Debt will be made so that the holders of such Permitted Secured Debt shall share with the Paying Indemnifying Parties, ratably in accordance with the amount of Permitted Secured Debt secured by the Collateral Documents, the payment of the amounts due under the preceding sentence.
(d) Except for action expressly required of U.S. Collateral Agent hereunder, U.S. Collateral Agent shall, notwithstanding anything to the contrary in Section 7(c) hereof, in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its satisfaction by the U.S. Secured Parties (or the lenders or holders represented thereby) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.
(e) Collateral Agent may deem and treat the payee of any promissory note or other evidence of indebtedness relating to the Senior Secured Obligations as the owner thereof for all purposes hereof unless and until a written notice of the assignment or transfer thereof, signed by such payee and in form satisfactory to Collateral Agent, shall have been filed with Collateral Agent. Any request, authority or consent of any Person who at the time of making such request or giving such authority or consent is the holder of any such note or other evidence of indebtedness shall be conclusive and binding on any subsequent holder, transferee or assignee of such note or other evidence of indebtedness and of any note or notes or other evidences of indebtedness issued in exchange therefor.
(f) Except as expressly provided herein and in the U.S. Security Collateral Documents, U.S. Collateral Agent shall have no duty to take any affirmative steps with respect to the collection of amounts payable in respect of the U.S. Domestic Collateral. U.S. Collateral Agent shall incur no liability to any U.S. Secured Party as a result of any sale of any U.S. Domestic Collateral at any private sale.
(fg) (i) U.S. Until such time as the Senior Secured Obligations shall have been indefeasibly paid in full, Collateral Agent may resign at any time by giving at least five (5) 30 days’ notice thereof to the U.S. Secured Parties (such resignation to take effect as hereinafter provided) and U.S. Collateral Agent may be removed as U.S. Collateral Agent at any time by Requisite Obligees). In the event of such resignation or removal of U.S. Collateral Agent, Requisite Obligees shall thereupon have the right to appoint a successor U.S. Collateral Agent. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) 30 days after the notice of the intent of U.S. Collateral Agent to resign, then the retiring U.S. Collateral Agent may, on behalf of the other U.S. Secured Parties, appoint a successor U.S. Collateral Agent. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(ii) (A) shall be a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000500,000,000 and (B) unless an Event of Default or condition or event which, after notice or lapse of time or both, would constitute an Event of Default if that condition or event were not cured or removed within any applicable grace or cure period (a “Potential Event of Default”) shall have occurred and be continuing, shall be approved by Company.
Appears in 2 contracts
Samples: Credit Agreement (Owens-Illinois Group Inc), Intercreditor Agreement (Owens-Illinois Group Inc)
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Covered Party acknowledges that U.S. Collateral the Sharing Agent shall not be the trustee of any U.S. Secured Covered Party. U.S. Collateral The Sharing Agent shall have no duties or responsibilities except those expressly set forth in this Agreement or and the U.S. Security Documents, and U.S. Collateral Sharing Agent shall not by reason of this Agreement or the U.S. Security Documents be a trustee for any U.S. Secured Covered Party or have any other fiduciary obligation to any U.S. Secured Covered Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. Collateral The Sharing Agent shall not be responsible to any U.S. Secured Covered Party for any recitals, statements, representations or warranties contained in this Agreement or any Financing Document or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing Documents, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents or any other document referred to or provided for therein or any Lien under the U.S. Security Documents or the perfection or priority of any such Lien or for any failure by any other party to perform any of its respective obligations under any of the Financing Documents. U.S. Collateral The Sharing Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither U.S. Collateral the Sharing Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from its or their own gross negligence or willful misconduct.
(b) U.S. Collateral The Sharing Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telex, telecopy, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person Person or personsPersons, and upon advice and statements of legal counsel (including counsel to the Obligors or any of their subsidiaries)counsel, independent accountants and other experts selected by U.S. Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting uponthe Sharing Agent. Without limiting any rights of U.S. Collateral the Sharing Agent hereunder, U.S. Collateral the Sharing Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligees, and such instructions of Requisite Obligees, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Covered Parties.
(c) Each of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco and each U.S. Pledgor Covered Party (collectively, the “Indemnifying Parties”) agrees, jointly and severally, agrees to indemnify U.S. Collateral the Sharing Agent out of any Proceeds pursuant to Section 6 hereof, for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever (including, without limitation, reasonable fees and expenses of attorneys and other professional advisors retained by the Sharing Agent) which may be imposed on, incurred by or asserted against U.S. Collateral the Sharing Agent in any way relating to or arising out of this Agreement or any of this Agreement, the U.S. Security Documents, the Financing Documents or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof; provided, however, that no such Indemnifying Party shall be liable for any of the foregoing to the extent they are finally judicially determined to have resulted from the gross negligence or willful misconduct of U.S. Collateral the Sharing Agent.
(d) Except for action expressly required of U.S. Collateral the Sharing Agent hereunder, U.S. Collateral the Sharing Agent shall, notwithstanding anything to the contrary in Section 7(c10(c) hereof, in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its satisfaction by the U.S. Secured Covered Parties (or the lenders or holders represented thereby) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.
(e) Except as expressly provided herein and in the U.S. Security Documents, U.S. Collateral Agent shall have no duty to take any affirmative steps with respect to the collection of amounts payable in respect of the U.S. Collateral. U.S. Collateral Agent shall incur no liability to any U.S. Secured Party as a result of any sale of any U.S. Collateral at any private sale.
(f) (i) U.S. Collateral The Sharing Agent may resign at any time by giving at least five (5) 5 days’ notice thereof to the U.S. Secured Covered Parties (such resignation to take effect as hereinafter provided) and U.S. Collateral Agent may be removed as U.S. Collateral Agent at any time by Requisite Obligees). In the event of such resignation or removal of U.S. Collateral the Sharing Agent, the Requisite Obligees shall thereupon have the right to appoint a successor U.S. Collateral Sharing Agent. If no successor U.S. Collateral Sharing Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) 30 days after the notice of the intent of U.S. Collateral the Sharing Agent to resign, then the retiring U.S. Collateral Sharing Agent may, on behalf of the other U.S. Secured Covered Parties, appoint a successor U.S. Collateral Sharing Agent. Any successor U.S. Collateral Sharing Agent appointed pursuant to this clause (f)(ie)(i) shall be a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000.
(ii) Upon the acceptance of any appointment as Sharing Agent hereunder by a successor Sharing Agent, such successor Sharing Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Sharing Agent, and the retiring or removed Sharing Agent shall thereupon be discharged from its duties and obligations hereunder. After any retiring or removed Sharing Agent’s resignation or removal hereunder as Sharing Agent, the provisions of this Section 10 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 the Sharing Agent.
(f) Each of the Covered Parties understands and acknowledges that the Sharing Agent and its Affiliates may also hold indebtedness of any Obligor or their subsidiaries, be an agent under any of the Financing Documents and act in other financial advisory or underwriting capacities on behalf of any Obligor and any of their subsidiaries, and waives any actual or potential conflict of interest resulting therefrom.
Appears in 2 contracts
Samples: Credit Agreement (Crown Holdings Inc), Global Participation and Proceeds Sharing Agreement (Crown Holdings Inc)
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party acknowledges that U.S. Collateral Agent shall not be the trustee of any U.S. Secured Party. U.S. The Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement Agreement, the Pledge Agreements or the U.S. Security DocumentsGuaranties, and U.S. the Collateral Agent shall not by reason of this Agreement Agreement, the Pledge Agreements or the U.S. Security Documents Guaranties be a trustee for any U.S. Secured Party or Guarantied Party or have any other fiduciary obligation to any U.S. Secured Party or Guarantied Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. The Collateral Agent shall not be responsible to any U.S. Secured Party or Guarantied Party for any recitals, statements, representations or warranties contained in this Agreement Agreement, the Credit Agreements, the notes evidencing Indebtedness under the Credit Agreements, the Interest Rate Agreements, the Currency Agreements, the Senior Note Indentures, the Senior Notes, the Pledge Agreements or any the Guaranties (collectively, the "Financing Document Agreements") or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing DocumentsAgreements, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents Agreements or any other document referred to or provided for therein or any Lien under the U.S. Security Documents Pledge Agreements or the perfection or priority of any such Lien or for any failure by any other party Loan Party to perform any of its respective obligations under any of the Financing DocumentsAgreements. U.S. The Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither U.S. the Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from its or their own gross negligence or willful misconduct.
(b) U.S. The Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telex, telecopy, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person Person or personsPersons, and upon advice and statements of legal counsel (including counsel to the Obligors Company or any Subsidiary of their subsidiariesthe Company), independent accountants and other experts selected by U.S. the Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting uponAgent. Without limiting As to any rights of U.S. Collateral Agent hereundermatters not expressly provided for by this Agreement, U.S. the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligees, and such instructions of Requisite Obligees, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Parties and Guarantied Parties.
(c) Each Subject to the proviso contained in the last sentence of Crown HoldingsSection 2(a), CCSCeach Credit Agent on behalf of the Lenders for which it serves as agent, Crown International, Crown Usco, Crown Euroco each Interest Rate Exchanger and each U.S. Pledgor Currency Exchanger (collectively, the “"Paying Indemnifying Parties”") agreesagrees that the Secured Parties represented by it shall indemnify the Collateral Agent, jointly and severallyratably in accordance with the amount of the obligations held by such Secured Parties secured by the Pledge Agreements, to indemnify U.S. Collateral Agent the extent neither reimbursed by the Company or any Pledgor under any Pledge Agreement nor reimbursed out of any Proceeds pursuant to clause First of Section 12 of any Pledge Agreement, for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against U.S. the Collateral Agent in any way relating to or arising out of any of this Agreement, the U.S. Security Documents, the Financing Documents Agreements or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof; provided, however, that no such Indemnifying Party or Secured Party shall be liable for any of the foregoing to the extent they are finally judicially determined to have resulted arise from the gross negligence or willful misconduct of U.S. the Collateral Agent. Each of the Senior Note Trustees (on behalf of the holders of the Senior Note Obligations on behalf of which it is entering into this Agreement) agrees that, as provided in Section 12 of the Company Pledge Agreement or Section 12 of the Subsidiary Pledge Agreement, deductions from distributions otherwise due such holders of Senior Note Obligations will be made so that such holders of Senior Note Obligations shall share with the Paying Indemnifying Parties, ratably in accordance with the amount (without duplication) of such Senior Note Obligations secured by the Pledge Agreements, the payment of the amounts due under the preceding sentence.
(d) Except for action expressly required of U.S. the Collateral Agent hereunder, U.S. the Collateral Agent shall, notwithstanding anything to the contrary in Section 7(c6(c) hereof, in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its satisfaction by the U.S. Secured Parties (or the lenders or holders represented thereby) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.
(e) The Collateral Agent may deem and treat the payee of any promissory note or other evidence of indebtedness relating to the Secured Obligations or Guarantied Obligations as the owner thereof for all purposes hereof unless and until a written notice of the assignment or transfer thereof, signed by such payee and in form satisfactory to the Collateral Agent, shall have been filed with the Collateral Agent. Any request, authority or consent of any Person who at the time of making such request or giving such authority or consent is the holder of any such note or other evidence of indebtedness shall be conclusive and binding on any subsequent holder, transferee or assignee of such note or other evidence of indebtedness and of any note or notes or other evidences of indebtedness issued in exchange therefor.
(f) Except as expressly provided herein and in the U.S. Security DocumentsPledge Agreements, U.S. the Collateral Agent shall have no duty to take any affirmative steps with respect to the collection of amounts payable in respect of the U.S. Pledged Collateral. U.S. The Collateral Agent shall incur no liability to any U.S. Secured Party as a result of any sale of any U.S. Pledged Collateral at any private sale.
(fg) (i) U.S. Until such time as the Obligations, the Interest Rate Obligations and the Currency Obligations secured by the Pledged Collateral shall have been paid in full, the Collateral Agent may resign at any time by giving at least five (5) 30 days’ ' notice thereof to the U.S. Secured Parties (such resignation to take effect as hereinafter provided) and U.S. the Collateral Agent may be removed as U.S. Collateral Agent at any time by Requisite Obligees. In the event of such resignation or removal of U.S. the Collateral Agent, Requisite Obligees shall thereupon have the right to appoint a successor U.S. Collateral Agent. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) 30 days after the notice of the intent of U.S. the Collateral Agent to resign, then the retiring U.S. Collateral Agent may, on behalf of the other U.S. Secured Parties, appoint a successor U.S. Collateral Agent. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(ii) (A) shall be a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000500,000,000 and (B) shall be approved by Company, which approval shall not be unreasonably withheld or delayed.
Appears in 1 contract
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party acknowledges that U.S. Collateral Agent shall not be the trustee of any U.S. Secured Party. U.S. The Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement Agreement, the Collateral Documents or the U.S. Security DocumentsLoan Guaranties, and U.S. the Collateral Agent shall not by reason of this Agreement Agreement, the Collateral Documents or the U.S. Security Documents Loan Guaranties be a trustee for any U.S. Secured Party or have any other fiduciary obligation to any U.S. Secured Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. The Collateral Agent shall not be responsible to any U.S. Secured Party for any recitals, statements, representations or warranties contained in this Agreement Agreement, the Credit Agreement, the Interest Rate Agreements, the Currency Agreements, the Other Permitted Credit Exposure Guaranties or any Financing Document other documents evidencing or relating to any Other Permitted Credit Exposure, the New Senior Debt Documents, the Existing Senior Note Indentures, the Existing Senior Notes, the Existing Senior Notes Subordinated Guaranty, the Refinancing Senior Debt Documents, the New Junior Debt Documents, the Collateral Documents or the Loan Guaranties (collectively, the "FINANCING AGREEMENTS") or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing DocumentsAgreements, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents Agreements or any other document referred to or provided for therein or any Lien under the U.S. Security Collateral Documents or the perfection or priority of any such Lien or for any failure by any other party Party to perform any of its respective obligations under any of the Financing DocumentsAgreements. U.S. The Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither U.S. the Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from its or their own gross negligence or willful misconduct.
(b) U.S. The Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telex, telecopy, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person Person or personsPersons, and upon advice and statements of legal counsel (including counsel to the Obligors Holdings or any Subsidiary of their subsidiariesHoldings), independent accountants and other experts selected by U.S. the Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting uponAgent. Without limiting As to any rights of U.S. Collateral Agent hereundermatters not expressly provided for by this Agreement, U.S. the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligees, and such instructions of Requisite Obligees, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Parties.
(c) Each The Lender Agent on behalf of Crown Holdingsthe Lenders, CCSCeach Interest Rate Exchanger, Crown International, Crown Usco, Crown Euroco each Currency Exchanger and each U.S. Pledgor Other Permitted Credit Exposure Holder (collectively, the “Indemnifying Parties”"PAYING INDEMNIFYING PARTIES") agreesagrees that the Secured Parties represented by it shall indemnify the Collateral Agent, jointly and severallyratably in accordance with the amount of the obligations held by such Secured Parties secured by the Collateral Documents, to indemnify U.S. the extent neither reimbursed by any Grantor under any Collateral Agent Document nor reimbursed out of any Proceeds pursuant to SECTION 3 hereof and the corresponding provisions of the Collateral Documents for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against U.S. the Collateral Agent in any way relating to or arising out of any of this Agreement, the U.S. Security Documents, the Financing Documents Agreements or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof; providedPROVIDED, howeverHOWEVER, that no such Indemnifying Secured Party shall be liable for any of the foregoing to the extent they are finally judicially determined to have resulted arise from the gross negligence or willful misconduct of U.S. the Collateral Agent. Each New Senior Debt Representative, on behalf of such New Senior Debt Representative and the holders in respect of which such New Senior Debt Representative is the Representative, agrees that, as provided in SECTION 3 hereof, Section 12 of the Pledge Agreement, Section 18 of the Security Agreement and the application of proceeds provision of each Mortgage deductions from distributions otherwise due with respect to such New Senior Debt will be made so that the holders of such New Senior Debt shall share with the Paying Indemnifying Parties, ratably in accordance with the amount of New Senior Debt secured by the Collateral Documents, the payment of the amounts due under the preceding sentence. As provided in SECTION 3 hereof, and Section 12 of the Pledge Agreement and only if the Supplemental Indenture Condition has been satisfied, deductions from distributions otherwise due with respect to the Existing Senior Note Trustee on behalf of the holders of Existing Senior Notes will be made so that such holders of Existing Senior Notes shall share with the Paying Indemnifying Parties, ratably in accordance with the amount (without duplication) of such Existing Senior Notes secured by the Pledge Agreement, the payment of the amounts due under the second preceding sentence. Each Refinancing Senior Debt Representative, on behalf of such Refinancing Senior Debt Representative and the holders in respect of which such Refinancing Senior Debt Representative is the Refinancing Senior Debt Representative, agrees that, as provided in SECTION 3 hereof, and Section 12 of the Pledge Agreement, deductions from distributions otherwise due with respect to such Refinancing Senior Debt will be made so that the holders of such Refinancing Senior Debt will share with the Paying Indemnifying Parties, ratably in accordance with the amount of Refinancing Senior Debt secured by the Pledge Agreement, the payment of the amounts due under the third preceding sentence. Each New Junior Debt Representative, on behalf of such New Junior Debt Representative and the holders in respect of which such New Junior Debt Representative is the New Junior Debt Representative, agrees that, as provided in and SECTION 3 hereof, and Section 12 of the Pledge Agreement, deductions from distributions otherwise due with respect to such New Junior Debt will be made so that the holders of such New Junior Debt will share with the Paying Indemnifying Parties, ratably in accordance with the amount of New Junior Debt secured by the Pledge Agreement, the payment of the amounts due under the fourth preceding sentence.
(d) Except for action expressly required of U.S. the Collateral Agent hereunder, U.S. the Collateral Agent shall, notwithstanding anything to the contrary in Section SECTION 7(c) hereof, in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its satisfaction by the U.S. Secured Parties (or the lenders or holders represented thereby) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.
(e) The Collateral Agent may deem and treat the payee of any promissory note or other evidence of indebtedness relating to the Senior Secured Obligations, Second Priority Secured Obligations or Third Priority Secured Obligations as the owner thereof for all purposes hereof unless and until a written notice of the assignment or transfer thereof, signed by such payee and in form satisfactory to the Collateral Agent, shall have been filed with the Collateral Agent. Any request, authority or consent of any Person who at the time of making such request or giving such authority or consent is the holder of any such note or other evidence of indebtedness shall be conclusive and binding on any subsequent holder, transferee or assignee of such note or other evidence of indebtedness and of any note or notes or other evidences of indebtedness issued in exchange therefor.
(f) Except as expressly provided herein and in the U.S. Security Collateral Documents, U.S. the Collateral Agent shall have no duty to take any affirmative steps with respect to the collection of amounts payable in respect of the U.S. Domestic Collateral. U.S. The Collateral Agent shall incur no liability to any U.S. Secured Party as a result of any sale of any U.S. Domestic Collateral at any private sale.
(fg) (i) U.S. Until such time as the Senior Secured Obligations shall have been indefeasibly paid in full, the Collateral Agent may resign at any time by giving at least five (5) 30 days’ ' notice thereof to the U.S. Secured Parties (such resignation to take effect as hereinafter provided) and U.S. the Collateral Agent may be removed as U.S. Collateral Agent at any time by Requisite Obligees. In the event of such resignation or removal of U.S. the Collateral Agent, Requisite Obligees shall thereupon have the right to appoint a successor U.S. Collateral Agent. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) 30 days after the notice of the intent of U.S. the Collateral Agent to resign, then the retiring U.S. Collateral Agent may, on behalf of the other U.S. Secured Parties, appoint a successor U.S. Collateral Agent. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(ii) (A) shall be a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000500,000,000 and (B) unless an Event of Default or Potential Event of Default shall have occurred and be continuing, shall be approved by Company.
Appears in 1 contract
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party acknowledges that U.S. Collateral Agent shall not be the trustee of any U.S. Secured Party. U.S. Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement Agreement, the Collateral Documents or the U.S. Security DocumentsLoan Guaranties, and U.S. Collateral Agent shall not by reason of this Agreement Agreement, the Collateral Documents or the U.S. Security Documents Loan Guaranties be a trustee for any U.S. Secured Party or have any other fiduciary obligation to any U.S. Secured Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. Collateral Agent shall not be responsible to any U.S. Secured Party for any recitals, statements, representations or warranties contained in this Agreement Agreement, the Credit Agreement, the Other Permitted Credit Exposure Documents or any other documents evidencing or relating to any Other Permitted Credit Exposure, the Permitted Secured Debt Documents, the Existing Holdings Senior Notes Indenture, the Existing Holdings Senior Notes, the Existing Holdings Senior Notes Subordinated Guaranty, the Collateral Documents or the Loan Guaranties (collectively, the “Financing Document Agreements”) or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing DocumentsAgreements, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents Agreements or any other document referred to or provided for therein or any Lien under the U.S. Security Collateral Documents or the perfection or priority of any such Lien or for any failure by any other party Party to perform any of its respective obligations under any of the Financing DocumentsAgreements. U.S. Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither U.S. Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from its or their own gross negligence or willful misconduct.
(b) U.S. Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telex, telecopy, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person Person or personsPersons, and upon advice and statements of legal counsel (including counsel to the Obligors Holdings or any Subsidiary of their subsidiariesHoldings), independent accountants and other experts selected by U.S. Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting uponAgent. Without limiting As to any rights of U.S. Collateral Agent hereundermatters not expressly provided for by this Agreement, U.S. Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligees, and such instructions of Requisite Obligees, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Parties.
(c) Each The Lender Agent on behalf of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco the Lenders and each U.S. Pledgor Other Permitted Credit Exposure Holder (collectively, the “Paying Indemnifying Parties”) agreesagrees that the Secured Parties represented by it shall indemnify Collateral Agent, jointly and severallyratably in accordance with the amount of the obligations held by such Secured Parties secured by the Collateral Documents, to indemnify U.S. the extent neither reimbursed by any Grantor under any Collateral Agent Document nor reimbursed out of any Proceeds pursuant to Section 3 hereof and the corresponding provisions of the Collateral Documents for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against U.S. Collateral Agent in any way relating to or arising out of any of this Agreement, the U.S. Security Documents, the Financing Documents Agreements or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof; provided, however, that no such Indemnifying Secured Party shall be liable for any of the foregoing to the extent they are finally judicially determined to have resulted arise from the gross negligence or willful misconduct of U.S. Collateral Agent. Each Permitted Secured Debt Representative, on behalf of such Permitted Secured Debt Representative and the holders in respect of which such Permitted Secured Debt Representative is the Representative, agrees that, as provided in Section 3 hereof, Section 12 of the Pledge Agreement and Section 18 of the Security Agreement, deductions from distributions otherwise due with respect to such Permitted Secured Debt will be made so that the holders of such Permitted Secured Debt shall share with the Paying Indemnifying Parties, ratably in accordance with the amount of Permitted Secured Debt secured by the Collateral Documents, the payment of the amounts due under the preceding sentence. As provided in Section 3 hereof, and Section 12 of the Pledge Agreement, deductions from distributions otherwise due with respect to the Existing Holdings Senior Notes Trustee on behalf of the holders of Existing Holdings Senior Notes will be made so that such holders of Existing Holdings Senior Notes shall share with the Paying Indemnifying Parties, ratably in accordance with the amount (without duplication) of the Existing Holdings Senior Notes secured by the Pledge Agreement, the payment of the amounts due under the second preceding sentence.
(d) Except for action expressly required of U.S. Collateral Agent hereunder, U.S. Collateral Agent shall, notwithstanding anything to the contrary in Section 7(c) hereof, in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its satisfaction by the U.S. Secured Parties (or the lenders or holders represented thereby) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.
(e) Collateral Agent may deem and treat the payee of any promissory note or other evidence of indebtedness relating to the Senior Secured Obligations or Second Priority Secured Obligations as the owner thereof for all purposes hereof unless and until a written notice of the assignment or transfer thereof, signed by such payee and in form satisfactory to Collateral Agent, shall have been filed with Collateral Agent. Any request, authority or consent of any Person who at the time of making such request or giving such authority or consent is the holder of any such note or other evidence of indebtedness shall be conclusive and binding on any subsequent holder, transferee or assignee of such note or other evidence of indebtedness and of any note or notes or other evidences of indebtedness issued in exchange therefor.
(f) Except as expressly provided herein and in the U.S. Security Collateral Documents, U.S. Collateral Agent shall have no duty to take any affirmative steps with respect to the collection of amounts payable in respect of the U.S. Domestic Collateral. U.S. Collateral Agent shall incur no liability to any U.S. Secured Party as a result of any sale of any U.S. Domestic Collateral at any private sale.
(fg) (i) U.S. Until such time as the Senior Secured Obligations shall have been indefeasibly paid in full, Collateral Agent may resign at any time by giving at least five (5) 30 days’ notice thereof to the U.S. Secured Parties (such resignation to take effect as hereinafter provided) and U.S. Collateral Agent may be removed as U.S. Collateral Agent at any time by Requisite Obligees). In the event of such resignation or removal of U.S. Collateral Agent, Requisite Obligees shall thereupon have the right to appoint a successor U.S. Collateral Agent. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) 30 days after the notice of the intent of U.S. Collateral Agent to resign, then the retiring U.S. Collateral Agent may, on behalf of the other U.S. Secured Parties, appoint a successor U.S. Collateral Agent. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(ii) (A) shall be a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000500,000,000 and (B) unless an Event of Default or Potential Event of Default shall have occurred and be continuing, shall be approved by Company.
Appears in 1 contract
Disclaimers, Indemnity, Etc. (a) By becoming It is expressly understood and agreed by each of the parties to this Agreement that this Agreement is executed and delivered by the Collateral Agent not individually or personally but solely in its capacity as Collateral Agent in the exercise of the powers and authority conferred and vested in it under this Agreement and the Security Documents for and on behalf of the Secured Parties for which it acts as Collateral Agent and it shall have no liability for acting for itself or in any capacity other than as Collateral Agent (including, for the avoidance of doubt, as Trustee) and nothing in this Agreement shall impose on it any obligation to pay any amount out of its own assets. It is further expressly understood and agreed by the parties to this Agreement that in no case shall the Collateral Agent be (i) personally liable, responsible or accountable in damages or otherwise for the actions of any Secured Party, (ii) personally liable, responsible or accountable in damages or otherwise to any other party for any loss, damage or claim incurred by reason of any act or omission performed or omitted by it in good faith in accordance with this Agreement or any of the other Security Documents in a manner that the Collateral Agent believed to be within the scope of the authority conferred on it by this Agreement or any of the other Security Documents or by law, or (iii) personally liable for or on account of any of the statements, representations, warranties, covenants or obligations stated to be those of any other party, all such liability, if any, being expressly waived by the parties and any person claiming by, through or under such party. Notwithstanding any other provision of this Agreement, the Collateral Agent shall not be required to indemnify any other person, whether or not a party to this Agreement, each U.S. Secured Party acknowledges that U.S. in respect of any losses or liability incurred as a result of or in connection with the transactions contemplated by this Agreement or the other Security Documents.
(b) Notwithstanding any other provision of this Agreement, the Collateral Agent shall not have any obligation to take any action under this Agreement or any other Security Document unless it is indemnified to its satisfaction in its sole discretion in respect of all costs, expenses, losses and liabilities which might in its opinion be incurred by it as a result of or in connection with such action.
(c) The Collateral Agent shall not be deemed to owe any fiduciary duty to any party to this Agreement and, in acting in its capacity as Collateral Agent for the trustee Secured Parties, is not required to have any regard to the interests of any U.S. Secured Partyother parties, except as set forth herein. U.S. With respect to the other parties to this Agreement, subject to the other provisions of this Section 7, the Collateral Agent shall have no duties undertakes to perform or responsibilities except those expressly to observe only such of its covenants or obligations as are specifically set forth in the Security Documents and this Agreement and no implied agreements, covenants or obligations with respect to the U.S. Security Documents, and U.S. Collateral Agent other parties shall not by reason of be read into this Agreement or against the U.S. Security Documents be a trustee for any U.S. Secured Party or have any other fiduciary obligation to any U.S. Secured Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. Collateral Agent shall not be responsible to any U.S. Secured Party for any recitals, statements, representations or warranties contained in this Agreement or any Financing Document or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing Documents, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents or any other document referred to or provided for therein or any Lien under the U.S. Security Documents or the perfection or priority of any such Lien or for any failure by any other party to perform any of its respective obligations under any of the Financing Documents. U.S. Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither U.S. Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from its or their own gross negligence or willful misconductAgent.
(bd) U.S. The Collateral Agent shall be entitled to request and may
(i) rely upon on any certification, notice or other communication (including any thereof by telex, telecopy, telegram or cable) document believed by it to be genuine and correct and to have been signed by, or sent by or on behalf of with the authority of, the proper person;
(ii) rely on any statement made by any person regarding any matters which may be assumed to be within his knowledge or personswithin his power to verify; and
(iii) engage, pay for and upon advice and statements of legal counsel rely on professional advisers selected by it (including counsel those representing a party other than the Collateral Agent).
(e) The Collateral Agent is not responsible to any other party for the Obligors legality, validity, effectiveness, enforceability, adequacy, accuracy, completeness or performance of
(i) any Financing Document or any other document;
(ii) any statement or information (whether written or oral) made in or supplied in connection with any Financing Document; or
(iii) any observance by any obligor or by GCUK and its subsidiaries of their subsidiaries), independent accountants and its obligations under any Financing Document or any other experts selected by U.S. document.
(f) The Collateral Agent and shall is not liable for
(i) any failure in all cases be fully protected in acting perfecting or refraining from so acting upon. Without limiting protecting the security constituted by any rights of U.S. Collateral Agent hereunder, U.S. Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligees, and such instructions of Requisite Obligees, and Security Document; or
(ii) any other action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Partiesnot taken by it in connection with a Security Document.
(cg) The Collateral Agent may accept, without enquiry, the title (if any) which a Pledgor may have to any asset over which security is intended to be created by any Security Document.
(h) The Collateral Agent has no obligation to insure any asset over which security is intended to be created by any Security Document or the interests of the Secured Parties in any such asset.
(i) The Collateral Agent is not obliged to hold in its own possession any Security Document, title deed or other document in connection with any asset over which security is intended to be created by a Security Document. Without prejudice to the above, the Collateral Agent may allow any bank providing safe custody services or any professional adviser to the Collateral Agent to retain any of those documents in its possession.
(j) Each of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco and each U.S. Pledgor (collectively, Secured Party irrevocably authorizes the “Indemnifying Parties”) agrees, jointly and severally, to indemnify U.S. Collateral Agent for to disclose to any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of other Secured Party any kind and nature whatsoever information which may be imposed on, incurred is received by or asserted against U.S. the Collateral Agent in any way relating to or arising out of any of this Agreement, its capacity as the U.S. Security Documents, the Financing Documents or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof; provided, however, that no such Indemnifying Party shall be liable for any of the foregoing to the extent they are finally judicially determined to have resulted from the gross negligence or willful misconduct of U.S. Collateral Agent.
(dk) Except for action expressly required of U.S. The Collateral Agent hereunder, U.S. Collateral Agent shall, notwithstanding may refrain from doing anything to the contrary in Section 7(c(including disclosing any information) hereofwhich might, in all cases its opinion, constitute a breach of any law or regulation or be fully justified otherwise actionable at the suit of any person, and may do anything which, in failing its opinion, is necessary or refusing desirable to act hereunder comply with any law or under the U.S. Security Documents unless it shall be further indemnified to its satisfaction by the U.S. Secured Parties (or the lenders or holders represented thereby) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such actionregulation.
(el) Except In acting as expressly provided herein the Collateral Agent pursuant to this Agreement, the parties to this Agreement acknowledge and in agree that the U.S. Security Documents, U.S. Collateral Agent shall have no duty to take any affirmative steps with respect be entitled to the collection benefit of amounts payable all of the provisions of the other Financing Documents (including, without limitation, in respect of the U.S. Collateral. U.S. remuneration and indemnification of the Collateral Agent) which are expressed to be either in its favor or for its protection or in favor of the Trustee or for the protection of the Trustee (as if the Collateral Agent shall incur no liability were the Trustee), insofar as the same are not contrary to any English or U.S. Secured Party as a result of any sale of any U.S. Collateral at any private salelaw.
(fm) (i) U.S. Collateral Agent may resign at any time by giving at least five (5) days’ notice thereof to The provisions of this Section 7 shall survive the U.S. Secured Parties (such resignation to take effect as hereinafter provided) and U.S. Collateral Agent may be removed as U.S. Collateral Agent at any time by Requisite Obligees. In the event termination of such resignation or removal of U.S. Collateral Agent, Requisite Obligees shall thereupon have the right to appoint a successor U.S. Collateral Agent. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) days after the notice of the intent of U.S. Collateral Agent to resign, then the retiring U.S. Collateral Agent may, on behalf of the other U.S. Secured Parties, appoint a successor U.S. Collateral Agent. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(i) shall be a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000Agreement.
Appears in 1 contract
Samples: Intercreditor and Collateral Agency Agreement (Global Crossing Uk Telecommunications LTD)
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party acknowledges that U.S. The Collateral Agent shall not be the trustee may execute any of any U.S. Secured Party. U.S. Collateral Agent shall have no its duties or responsibilities except those expressly set forth in under this Agreement or the U.S. Amended and Restated Security DocumentsAgreement by or through agents, employees or attorneys-in-fact and U.S. Collateral Agent shall not by reason be entitled to advice of this Agreement or the U.S. Security Documents be a trustee for any U.S. Secured Party or have any other fiduciary obligation to any U.S. Secured Party counsel (including any obligation under the Trust Indenture Act of 1939, as amended)in-house counsel) concerning all matters pertaining to such duties. U.S. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects with reasonable care.
(b) Neither the Collateral Agent nor any of its employees shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the Amended and Restated Security Agreement or the transactions contemplated hereby (except for its own or their gross negligence or willful misconduct), or (ii) be responsible in any manner to any U.S. Secured Party of the Lenders or Noteholders for any recitalsrecital, statementsstatement, representations representation or warranties warranty made by USR, or any officer thereof, contained in this Agreement or any Financing Document the Amended and Restated Security Agreement or in any certificate certificate, report, statement or other document referred to or provided for in, or received by any of them underthe Collateral Agent under or in connection with, any of this Agreement or the Financing Documents, Amended and Restated Security Agreement or for the value, validity, effectiveness, genuineness, enforceability or enforceability, sufficiency of any of the Financing Documents or any other document referred to or provided for therein or any Lien under the U.S. Security Documents this Agreement or the perfection or priority of any such Lien Amended and Restated Security Agreement or for any failure by any other party of USR to perform any of its respective obligations under any of the Financing Documents. U.S. Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money hereunder or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable carethereunder. Neither U.S. the Collateral Agent nor any of its directors, officers, employees or agents shall be liable under any obligation to any Lender or responsible for any action taken Noteholder to ascertain or omitted to be taken by it inquire as to the observance or them hereunder performance of any of the agreements contained in, or in connection herewithconditions of, except for actions that are finally judicially determined this Agreement or the Amended and Restated Security Agreement, or to have resulted from its inspect the properties, books or their own gross negligence or willful misconductrecords of USR.
(bc) U.S. The Collateral Agent shall be entitled to request rely, and rely shall be fully protected in relying, upon any certificationwriting, notice resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex, statement or other communication (including any thereof by telex, telecopy, telegram or cable) document believed by it to be genuine and correct and to have been signed signed, sent or sent made by or on behalf of the proper person Person or personsPersons, and upon advice and statements of legal counsel (but not including counsel to the Obligors or any of their subsidiariesUSR), independent accountants and other experts selected by U.S. the Collateral Agent. The Collateral Agent and shall in all cases be fully protected justified in acting failing or refraining from so acting upon. Without limiting refusing to take any rights of U.S. action under this Agreement or the Amended and Restated Security Agreement unless it shall first receive such advice or concurrence by the Majority Benefited Parties customarily and reasonably acceptable to the Collateral Agent and, if it so requests, it shall first be indemnified by the Benefited Parties ratably in accordance with the amount of the Benefited Obligations held by such Benefited Parties against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action to the extent not otherwise reimbursed hereunder. Any such indemnity given by a Benefited Party which is a bank, U.S. trust company, savings and loan association, pension fund, investment company, insurance company, fraternal benefit society, broker or dealer or other similar financial institution or entity, regardless of legal form, may be unsecured at the option of such Benefited Party. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder under this Agreement or the Amended and Restated Security Agreement in accordance with instructions signed by Requisite Obligees, a request or consent of the Majority Benefited Parties and such instructions of Requisite Obligees, request and any action taken or failure to act pursuant thereto, thereto shall be binding on upon all of the U.S. Secured Benefited Parties.
(cd) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Event of Default or Special Event of Default, unless the Collateral Agent shall have received written notice from a Lender, a Noteholder or USR referring to this Agreement, describing such Event of Default or Special Event of Default, and stating that such notice is a "notice of default". The Collateral Agent shall take such action with respect to such Event of Default or Special Event of Default as may be requested by the Majority Benefited Parties in accordance with (S)3; 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 Event of Default or Special Event of Default, as it shall deem advisable or in the best interest of the Lenders and the Noteholders.
(e) Each Lender and each Noteholder acknowledges that the Collateral Agent-Related Persons has not made any representation or warranty to it, and that no act by the Collateral Agent hereinafter taken, including any review of the affairs of USR and its Subsidiaries, shall be deemed to constitute any representation or warranty by the Collateral Agent to any Lender or Noteholder. Each Lender and each Noteholder 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 appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of USR and its Subsidiaries, and made its own decision to enter into this Agreement and to extend credit to USR hereunder. Each Lender and Noteholder also represents that it will, independently and without reliance upon the Collateral Agent-Related Persons and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement or the Amended and Restated Security Agreement, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of USR. Except for notices, reports and other documents expressly herein required to be furnished to the Lenders and the Noteholders by the Collateral Agent, the Collateral Agent shall not have any duty or responsibility to provide any Lender or Noteholder with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of USR which may come into the possession of any of the Collateral Agent-Related Persons.
(f) Each of Crown Holdingsthe Benefited Parties severally agrees (i) to reimburse the Collateral Agent in accordance with its pro rata share for any expenses incurred by the Collateral Agent, CCSCincluding, Crown Internationalwithout duplication of legal services rendered, Crown Uscoreasonable fees and disbursements of counsel to the Collateral Agent evidenced by reasonable and customary computer back-up detail, Crown Euroco arising out of or as a result of the execution and delivery of this Agreement or the Amended and Restated Security Agreement or the performance by the Collateral Agent pursuant thereto of its obligations thereunder or in connection of the enforcement or protection of the rights of the Collateral Agent and the Benefited Parties hereunder or under the Amended and Restated Security Agreement, in each U.S. Pledgor case to the extent that the foregoing shall not have been reimbursed by USR or directly by one or more of the Benefited Parties or paid from the proceeds of the Collateral as provided herein and (collectively, ii) to the “Indemnifying Parties”) agrees, jointly and severallyextent not reimbursed by USR or directly by one or more of the Benefited Parties or paid from the proceeds of the Collateral, to indemnify U.S. and hold harmless the Collateral Agent for and the Collateral Agent-Related Persons in accordance with its pro rata share, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and or nature whatsoever which may be imposed on, incurred by or asserted against U.S. the Collateral Agent in its capacity as the Collateral Agent in any way relating to or arising out of any of this Agreement, Agreement or the U.S. Amended and Restated Security Documents, the Financing Documents Agreement or any other documents contemplated action taken or omitted by or referred to therein them under this Agreement or the transactions contemplated thereby or Amended and Restated Security Agreement including, without limitation, after the enforcement Collateral Agent has given notice pursuant to the second to the last sentence of any of the terms of any thereof; providedSection 8(h)(i) hereof, however, provided that no such Indemnifying Benefited Party shall be liable to the Collateral Agent or any Collateral Agent-Related Person for any portion of the foregoing to the extent they are finally judicially determined to have resulted such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of U.S. the Collateral Agent or any Collateral Agent-Related Person.
(dg) Except Bank of America and its affiliates may make loans to, issue letters of credit for action expressly required the account of, accept deposits from, acquire equity interests in and generally engage in any kind of U.S. banking, trust, financial advisory, underwriting or other business with USR and its Subsidiaries and Affiliates as though Bank of America were not the Collateral Agent hereunder, U.S. Collateral Agent shall, notwithstanding anything hereunder and without notice to or consent of the contrary in Section 7(c) hereof, in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its satisfaction by the U.S. Secured Parties (Lenders or the lenders Noteholders. The Lenders and Noteholders acknowledge that, pursuant to such activities, Bank of America or holders represented thereby) against any and all liability and expense which its subsidiaries may receive information regarding USR or its Subsidiaries (including information that may be incurred by it by reason subject to confidentiality obligations in favor of taking USR or continuing to take any such action.
(eSubsidiary) Except as expressly provided herein and in acknowledge that the U.S. Security Documents, U.S. Collateral Agent shall have be under no duty obligation to take any affirmative steps with provide such information to them. With respect to its loans to USR, Bank of America shall have the collection of amounts payable in respect of same rights and powers under this Agreement as any other Lender and may exercise the U.S. Collateral. U.S. Collateral Agent shall incur no liability to any U.S. Secured Party same as a result of any sale of any U.S. Collateral at any private sale.
(f) (i) U.S. Collateral Agent may resign at any time by giving at least five (5) days’ notice thereof to though it were not the U.S. Secured Parties (such resignation to take effect as hereinafter provided) and U.S. Collateral Agent may be removed as U.S. Collateral Agent at any time by Requisite Obligees. In the event of such resignation or removal of U.S. Collateral Agent, Requisite Obligees shall thereupon have and the right to appoint a successor U.S. Collateral Agent. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees terms "Lender" and shall have accepted such appointment within thirty (30) days after the notice of the intent of U.S. Collateral Agent to resign, then the retiring U.S. Collateral Agent may, on behalf of the other U.S. Secured Parties, appoint a successor U.S. Collateral Agent. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(i) shall be a commercial bank organized under the laws of the United States "Lenders" include Bank of America or any state thereof and having a combined capital and surplus of at least $500,000,000in its individual capacity.
Appears in 1 contract
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party acknowledges that U.S. Collateral Agent shall not be the trustee of any U.S. Secured Party. U.S. The Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement Agreement, the Pledge Agreements or the U.S. Security DocumentsLoan Guaranty, and U.S. the Collateral Agent shall not by reason of this Agreement Agreement, the Pledge Agreements or the U.S. Security Documents Loan Guaranty be a trustee for any U.S. Secured Party or Guarantied Party or have any other fiduciary obligation to any U.S. Secured Party or Guarantied Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. The Collateral Agent shall not be responsible to any U.S. Secured Party or Guarantied Party for any recitals, statements, representations or warranties contained in this Agreement Agreement, the Credit Agreements, the notes evidencing Indebtedness under the Credit Agreements, the Interest Rate Agreements, the Currency Agreements, the Foreign Lender Guaranties, the Foreign Loan Agreements, the Senior Debenture Indenture, the Senior Debentures, the Commercial Paper Documents, the Subordinated Debt Indenture, the Subordinated Debt Securities, the Pledge Agree- ments or any Financing Document the Loan Guaranty (collectively, the "FINANCING AGREEMENTS") or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing DocumentsAgreements, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents Agreements or any other document referred to or provided for therein or any Lien under the U.S. Security Documents Pledge Agreements or the perfection or priority of any such Lien or for any failure by any other party Loan Party to perform any of its respective obligations under any of the Financing DocumentsAgreements. U.S. The Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither U.S. the Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from its or their own gross negligence or willful misconduct.
(b) U.S. The Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telex, telecopy, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person Person or personsPersons, and upon advice and statements of legal counsel (including counsel to the Obligors Company or any Subsidiary of their subsidiariesthe Company), independent accountants and other experts selected by U.S. the Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting uponAgent. Without limiting As to any rights of U.S. Collateral Agent hereundermatters not expressly provided for by this Agreement, U.S. the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligees, and such instructions of Requisite Obligees, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Parties and Guarantied Parties.
(c) Each Subject to the proviso contained in the last sentence of Crown HoldingsSection 2(a), CCSCeach Credit Agent on behalf of the Lenders for which it serves as agent, Crown Internationaleach Interest Rate Exchanger, Crown Usco, Crown Euroco each Currency Exchanger and each U.S. Pledgor Foreign Lender (collectively, the “Indemnifying Parties”"PAYING INDEMNIFYING PARTIES") agreesagrees that the Secured Parties represented by it shall indemnify the Collateral Agent, jointly and severallyratably in accordance with the amount of the obligations held by such Secured Parties secured by the Pledge Agreements, to indemnify U.S. Collateral Agent the extent neither reimbursed by the Company or any Pledgor under any Pledge Agreement nor reimbursed out of any Proceeds pursuant to clause First of Section 12 of any Pledge Agreement, for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against U.S. the Collateral Agent in any way relating to or arising out of any of this Agreement, the U.S. Security Documents, the Financing Documents Agreements or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof; provided, however, that no such Indemnifying Party or Secured Party shall be liable for any of the foregoing to the extent they are finally judicially determined to have resulted arise from the gross negligence or willful misconduct of U.S. the Collateral Agent. Each Commercial Paper Representative, on behalf of such Commercial Paper Representative and the Commercial Paper Holders in respect of which such Commercial Paper Representative is the Commercial Paper Representative, agrees that, as provided in Section 12 of each Pledge Agreement and in the Loan Guaranty, deductions from distributions otherwise due the Commercial Paper Holders will be made so that such Commercial Paper Holders shall share with the Paying Indemnifying Parties, ratably in accordance with the amount of the Commercial Paper Obligations secured by the Pledge Agreements and guarantied by the Loan Guaranty, the payment of the amounts due under the preceding sentence. The Senior Debenture Trustee and the Subordinated Debt Trustee (on behalf of the holders of the Senior Debenture Obligations or Subordinated Debt Securities on behalf of which it is entering into this Agreement) agrees that, as provided in Section 12 of the Company Pledge Agreement or (in the case of the holders of Senior Debenture Obligations to the extent such Senior Debenture Obligations are then secured by the Pledged Collateral under the Intermediate Subsidiary Pledge Agreement) Section 12 of the Intermediate Subsidiary Pledge Agreement, deductions from distributions otherwise due such holders of Senior Debenture Obligations or Subordinated Debt Securities, as the case may be, will be made so that such holders of Senior Debenture Obligations or Subordinated Debt Securities, as the case may be, shall share with the Paying Indemnifying Parties, ratably in accordance with the amount (without duplication) of such Senior Debenture Obligations or Subordinated Debt Securities, as the case may be, secured by the Company Pledge Agreement or the Intermediate Subsidiary Pledge Agreement, as the case may be, the payment of the amounts due under the second preceding sentence.
(d) Except for action expressly required of U.S. the Collateral Agent hereunder, U.S. the Collateral Agent shall, notwithstanding anything to the contrary in Section 7(c) hereof, in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its satisfaction by the U.S. Secured Parties (or the lenders or holders represented thereby) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.
(e) The Collateral Agent may deem and treat the payee of any promissory note or other evidence of indebtedness relating to the Secured Obligations or Guarantied Obligations as the owner thereof for all purposes hereof unless and until a written notice of the assignment or transfer thereof, signed by such payee and in form satisfactory to the Collateral Agent, shall have been filed with the Collateral Agent. Any request, authority or consent of any Person who at the time of making such request or giving such authority or consent is the holder of any such note or other evidence of indebtedness shall be conclusive and binding on any subsequent holder, transferee or assignee of such note or other evidence of indebtedness and of any note or notes or other evidences of indebtedness issued in exchange therefor.
(f) Except as expressly provided herein and in the U.S. Security DocumentsPledge Agreements, U.S. the Collateral Agent shall have no duty to take any affirmative steps with respect to the collection of amounts payable in respect of the U.S. Pledged Collateral. U.S. The Collateral Agent shall incur no liability to any U.S. Secured Party as a result of any sale of any U.S. Pledged Collateral at any private sale.
(fg) (i) U.S. Until such time as the Obligations, the Foreign Lender Obligations, the Interest Rate Obligations and the Currency Obligations secured by the Pledged Collateral shall have been indefeasibly paid in full, the Collateral Agent may resign at any time by giving at least five (5) 30 days’ ' notice thereof to the U.S. Secured Parties (such resignation to take effect as hereinafter provided) and U.S. the Collateral Agent may be removed as U.S. Collateral Agent at any time by Requisite Obligees. In the event of such resignation or removal of U.S. the Collateral Agent, Requisite Obligees shall thereupon have the right to appoint a successor U.S. Collateral Agent. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) 30 days after the notice of the intent of U.S. the Collateral Agent to resign, then the retiring U.S. Collateral Agent may, on behalf of the other U.S. Secured Parties, appoint a successor U.S. Collateral Agent. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(ii) (A) shall be a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000500,000,000 and (B) shall be approved by the Company.
Appears in 1 contract
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Covered Party acknowledges that U.S. Collateral the Sharing Agent shall not be the trustee of any U.S. Secured Covered Party. U.S. Collateral The Sharing Agent shall have no duties or responsibilities except those expressly set forth in this Agreement or and the U.S. Security Documents, and U.S. Collateral Sharing Agent shall not by reason of this Agreement or the U.S. Security Documents be a trustee for any U.S. Secured Covered Party or have any other fiduciary obligation to any U.S. Secured Covered Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. Collateral The Sharing Agent shall not be responsible to any U.S. Secured Covered Party for any recitals, statements, representations or warranties contained in this Agreement or any Financing Document or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing Documents, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents or any other document referred to or provided for therein or any Lien under the U.S. Security Documents or the perfection or priority of any such Lien or for any failure by any other party to perform any of its respective obligations under any of the Financing Documents. U.S. Collateral The Sharing Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither U.S. Collateral the Sharing Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from its or their own gross negligence or willful misconduct.
(b) U.S. Collateral The Sharing Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telex, telecopy, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person Person or personsPersons, and upon advice and statements of legal counsel (including counsel to the Obligors or any of their subsidiaries)counsel, independent accountants and other experts selected by U.S. Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting uponthe Sharing Agent. Without limiting any rights of U.S. Collateral the Sharing Agent hereunder, U.S. Collateral the Sharing Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligees, and such instructions of Requisite Obligees, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Covered Parties.
(c) Each of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco and each U.S. Pledgor Covered Party (collectively, the “Indemnifying Parties”) agrees, jointly and severally, agrees to indemnify U.S. Collateral the Sharing Agent out of any Proceeds pursuant to Section 6 hereof, for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against U.S. Collateral the Sharing Agent in any way relating to or arising out of this Agreement or any of this Agreement, the U.S. Security Documents, the Financing Documents or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof; provided, however, that no such Indemnifying Party shall be liable for any of the foregoing to the extent they are finally judicially determined to have resulted from the gross negligence or willful misconduct of U.S. Collateral the Sharing Agent.
(d) Except for action expressly required of U.S. Collateral the Sharing Agent hereunder, U.S. Collateral the Sharing Agent shall, notwithstanding anything to the contrary in Section 7(c10(c) hereof, in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its satisfaction by the U.S. Secured Covered Parties (or the lenders or holders represented thereby) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.
(e) Except as expressly provided herein and in the U.S. Security Documents, U.S. Collateral Agent shall have no duty to take any affirmative steps with respect to the collection of amounts payable in respect of the U.S. Collateral. U.S. Collateral Agent shall incur no liability to any U.S. Secured Party as a result of any sale of any U.S. Collateral at any private sale.
(f) (i) U.S. Collateral The Sharing Agent may resign at any time by giving at least five (5) 5 days’ notice thereof to the U.S. Secured Covered Parties (such resignation to take effect as hereinafter provided) and U.S. Collateral Agent may be removed as U.S. Collateral Agent at any time by Requisite Obligees). In the event of such resignation or removal of U.S. Collateral the Sharing Agent, the Requisite Obligees shall thereupon have the right to appoint a successor U.S. Collateral Sharing Agent. If no successor U.S. Collateral Sharing Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) 30 days after the notice of the intent of U.S. Collateral the Sharing Agent to resign, then the retiring U.S. Collateral Sharing Agent may, on behalf of the other U.S. Secured Covered Parties, appoint a successor U.S. Collateral Sharing Agent. Any successor U.S. Collateral Sharing Agent appointed pursuant to this clause (f)(ie)(i) shall be a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000.
(ii) Upon the acceptance of any appointment as Sharing Agent hereunder by a successor Sharing Agent, such successor Sharing Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Sharing Agent, and the retiring or removed Sharing Agent shall thereupon be discharged from its duties and obligations hereunder. After any retiring or removed Sharing Agent’s resignation or removal hereunder as Sharing Agent, the provisions of this Section 10 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 the Sharing Agent.
(f) Each of the Covered Parties understands and acknowledges that the Sharing Agent and its Affiliates may also hold indebtedness of any Obligor or their subsidiaries, be an agent under any of the Financing Documents and act in other financial advisory or underwriting capacities on behalf of any Obligor and any of their subsidiaries, and waives any actual or potential conflict of interest resulting therefrom.
Appears in 1 contract
Samples: Global Participation and Proceeds Sharing Agreement (Crown Holdings Inc)
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party acknowledges that U.S. Collateral Agent shall not be the trustee of any U.S. Secured Party. U.S. Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement Agreement, the Collateral Documents or the U.S. Security DocumentsLoan Guaranties, and U.S. Collateral Agent shall not by reason of this Agreement Agreement, the Collateral Documents or the U.S. Security Documents Loan Guaranties be a trustee for any U.S. Secured Party or have any other fiduciary obligation to any U.S. Secured Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. Collateral Agent shall not be responsible to any U.S. Secured Party for any recitals, statements, representations or warranties contained in this Agreement Agreement, the Credit Agreement, the Other Permitted Credit Exposure Documents or any other documents evidencing or relating to any Other Permitted Credit Exposure, the Permitted Secured Debt Documents, the Collateral Documents or the Loan Guaranties (collectively, the “Financing Document Agreements”) or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing DocumentsAgreements, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents Agreements or any other document referred to or provided for therein or any Lien created under the U.S. Security Collateral Documents or the perfection or priority of any such Lien or for any failure by any other party Loan Party to perform any of its respective obligations under any of the Financing DocumentsAgreements. U.S. Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-in- fact selected by it with reasonable care. Neither U.S. Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from its or their own gross negligence or willful misconductmisconduct (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(b) U.S. Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telex, telecopy, telegram telegram, cable or cableother electronic transmission) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person Person or personsPersons, and upon advice and statements of legal counsel (including counsel to the Obligors Holdings or any Subsidiary of their subsidiariesHoldings), independent accountants and other experts selected by U.S. Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting uponAgent. Without limiting As to any rights of U.S. Collateral Agent hereundermatters not expressly provided for by this Agreement, U.S. Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligees, and such instructions of Requisite Obligees, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Parties.
(c) Each The Lender Agent on behalf of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco the Lenders and each U.S. Pledgor Other Permitted Credit Exposure Holder (collectively, the “Paying Indemnifying Parties”) agreesagrees that the Secured Parties represented by it shall indemnify Collateral Agent, jointly and severallyratably in accordance with the amount of the obligations held by such Secured Parties secured by the Collateral Documents, to indemnify U.S. the extent neither reimbursed by any Grantor under the Credit Agreement or any Collateral Agent Document nor reimbursed out of any Proceeds pursuant to Section 3 hereof and the corresponding provisions of the Collateral Documents for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against U.S. Collateral Agent in any way relating to or arising out of any of this Agreement, the U.S. Security Documents, the Financing Documents Agreements or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof; provided, however, that no such Indemnifying Secured Party shall be liable for any of the foregoing to the extent they are finally judicially determined to have resulted arise from the gross negligence or willful misconduct of U.S. Collateral AgentAgent (as determined by a court of competent jurisdiction in a final and non-appealable judgment). Each Permitted Secured Debt Representative, on behalf of such Permitted Secured Debt Representative and the holders of Permitted Secured Debt in respect of which such Permitted Secured Debt Representative is the representative, agrees that, as provided in Section 3 hereof, Section 12 of the Pledge Agreement and Section 18 of the Security Agreement, deductions from distributions otherwise due with respect to such Permitted Secured Debt will be made so that the holders of such Permitted Secured Debt shall share with the Paying Indemnifying Parties, ratably in accordance with the amount of Permitted Secured Debt secured by the Collateral Documents, the payment of the amounts due under the preceding sentence.
(d) Except for action expressly required of U.S. Collateral Agent hereunder, U.S. Collateral Agent shall, notwithstanding anything to the contrary in Section 7(c) hereof, in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its satisfaction by the U.S. Secured Parties (or the lenders or holders represented thereby) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.
(e) Collateral Agent may deem and treat the payee of any promissory note or other evidence of indebtedness relating to the Senior Secured Obligations as the owner thereof for all purposes hereof unless and until a written notice of the assignment or transfer thereof, signed by such payee and in form satisfactory to Collateral Agent, shall have been filed with Collateral Agent. Any request, authority or consent of any Person who at the time of making such request or giving such authority or consent is the holder of any such note or other evidence of indebtedness shall be conclusive and binding on any subsequent holder, transferee or assignee of such note or other evidence of indebtedness and of any note or notes or other evidences of indebtedness issued in exchange therefor.
(f) Except as expressly provided herein and in the U.S. Security Collateral Documents, U.S. Collateral Agent shall have no duty to take any affirmative steps with respect to the collection of amounts payable in respect of the U.S. Domestic Collateral. U.S. Collateral Agent shall incur no liability to any U.S. Secured Party as a result of any sale of any U.S. Domestic Collateral at any private sale.
(fg) (i) U.S. Until such time as the Senior Secured Obligations shall have been indefeasibly paid in full, Collateral Agent may resign at any time by giving at least five (5) 30 days’ notice thereof to the U.S. Secured Parties (such resignation to take effect as hereinafter provided) and U.S. Collateral Agent may be removed as U.S. Collateral Agent at any time by Requisite Obligees). In the event of such resignation or removal of U.S. Collateral Agent, Requisite Obligees shall thereupon have the right to appoint a successor U.S. Collateral Agent. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) 30 days after the notice of the intent of U.S. Collateral Agent to resign, then the retiring U.S. Collateral Agent may, on behalf of the other U.S. Secured Parties, appoint a successor U.S. Collateral Agent. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(ii) shall (A) be a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000500,000,000 and (B) unless an Event of Default or condition or event which, after notice or lapse of time or both, would constitute an Event of Default if that condition or event were not cured or removed within any applicable grace or cure period (a “Potential Event of Default”) shall have occurred and be continuing, be approved by Company.
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Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party acknowledges that U.S. Collateral Agent shall not be the trustee of any U.S. Secured Party. U.S. The Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement or and the U.S. Security Documents, and U.S. . The Collateral Agent shall not by reason of this Agreement Agreement, the Security Documents or the U.S. Security Documents Guaranty be a trustee for any U.S. Secured Creditor Party or have any other fiduciary obligation to any U.S. Secured Creditor Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. The Collateral Agent shall not be responsible to any U.S. Secured Creditor Party for any recitals, statements, representations or warranties contained in this Agreement or any Financing Document Agreement or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing DocumentsAgreement, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents Agreement or any other document referred to or provided for therein or any Lien under any of the U.S. Security Documents or the perfection or priority of any such Lien or for any failure by the Company, any Grantor, any Creditor Party or any other party Person to perform any of its respective obligations under any of Financing Agreement. Without limiting the Financing foregoing, the Collateral Agent shall not be required to take any action under any Security Document or the Guaranty, including, without limitation, any action to perfect any security interests granted in the Collateral pursuant to the Security Documents, or to administer any Collateral unless instructed to do so by the Directing Parties. U.S. The Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither U.S. the Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from its or their own the gross negligence or willful misconductmisconduct of such Person.
(b) U.S. The Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telephone, telex, telecopyfacsimile, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person Person or personsPersons, and upon advice and statements of independent legal counsel (including counsel to the Obligors or any of their subsidiaries)counsel, independent accountants and other experts selected by U.S. the Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting uponAgent. Without limiting As to any rights of U.S. Collateral Agent hereundermatters not expressly provided for by this Agreement, U.S. the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligeesthe Directing Parties, and such instructions of Requisite Obligeesthe Directing Parties, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Creditor Parties, whether Directing Parties or Non-Directing Parties.
(c) Each The Creditor Parties agree that they will indemnify the Collateral Agent, in its capacity as the Collateral Agent, ratably in accordance with the amount of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco and each U.S. Pledgor (collectively, the “Indemnifying Creditor Obligations held by such Creditor Parties”) agrees, jointly and severally, to indemnify U.S. the extent the Collateral Agent is not reimbursed by the Grantors or reimbursed pursuant to clause FIRST of subsection 6(a)(iii) or subsection 11(o), for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and or nature whatsoever which that may be imposed on, incurred by or asserted against U.S. the Collateral Agent in any way relating to or arising out of any of this Agreement, the U.S. any Security Documents, the Financing Documents or any other documents contemplated by or referred to therein Document or the transactions contemplated thereby Guaranty or the enforcement of any of the terms of any thereof, including fees and expenses of counsel (including the allocated cost of internal counsel); provided, however, that no such Indemnifying Creditor Party shall be liable for any of the foregoing such payment to the extent they are finally judicially determined the obligation to make such payment is found in a final judgment by a court of competent jurisdiction to have resulted arisen solely from the Collateral Agent's gross negligence or willful misconduct misconduct. The obligations of U.S. Collateral Agentthe Creditor Parties under this subsection 8(c) shall survive the payment in full of the Creditor Obligations and the termination of this Agreement.
(d) Except for action expressly required of U.S. the Collateral Agent hereunder, U.S. the Collateral Agent shall, notwithstanding anything to the contrary in Section 7(c) hereofsubsection 8(c), in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its reasonable satisfaction by the U.S. Secured Creditor Parties (or the lenders or holders represented thereby) against any and all liability and expense which that may be incurred by it by reason of taking or continuing to take any such action.
(e) The Collateral Agent may deem and treat the payee of any promissory note or other evidence of indebtedness or obligation relating to any Creditor Obligation as the owner thereof for all purposes hereof unless and until a written notice of the assignment or transfer thereof, signed by such payee and in form reasonably satisfactory to the Collateral Agent, shall have been filed with the Collateral Agent. Any request, authority or consent of any Person who at the time of making such request or giving such authority or consent is the holder of any such note or other evidence of indebtedness or obligation shall be conclusive and binding on any subsequent holder, transferee or assignee of such note or other evidence of indebtedness or obligation and of any note or notes or other evidences of indebtedness or obligation issued in exchange therefor.
(f) Except as expressly provided herein and in the U.S. Security Documents, U.S. the Collateral Agent shall have no duty to take any affirmative steps with respect to the administration or collection of amounts payable in respect of the U.S. Security Documents or the Collateral. U.S. The Collateral Agent shall incur no liability (except to any U.S. Secured Party the extent the actions or omissions of the Collateral Agent in connection therewith constitute gross negligence or willful misconduct) as a result of any sale of any U.S. Collateral Collateral, whether at any public or private sale.
(f) (i) U.S. The Collateral Agent may resign at any time by giving at least five (5) 30 days’ ' notice thereof to the U.S. Secured Parties (such resignation to take effect upon the acceptance by a successor Collateral Agent of any appointment as hereinafter providedthe Collateral Agent hereunder) and U.S. the Collateral Agent may be removed as U.S. the Collateral Agent at any time by Requisite Obligeesthe Directing Parties. In the event of any such resignation or removal of U.S. the Collateral Agent, Requisite Obligees the Directing Parties shall thereupon have the right to appoint a successor U.S. Collateral Agent. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees the Directing Parties and shall have accepted such appointment within thirty (30) 30 days after the notice of the intent of U.S. the Collateral Agent to resignresign or the removal of the Collateral Agent, then the retiring U.S. Collateral Agent may, on behalf of the other U.S. Secured Parties, appoint a successor U.S. Collateral Agent. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(i) shall be a commercial bank or other financial institution organized or having a branch or agency under the laws of the United States of America or any state thereof and having (1) a combined capital and surplus of at least $500,000,000500,000,000 and (2) a rating upon its long-term senior unsecured indebtedness of "A-2" or better by Moodx'x Xxxestors Service, Inc. or "A" or better by Standard & Poor's Ratings Services. After any retiring Collateral Agent's resignation or removal hereunder, the provisions of Section 5 and this Section 8 shall continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was Collateral Agent.
(ii) Upon the acceptance by a successor Collateral Agent of any appointment as the Collateral Agent hereunder, 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, and the retiring or removed Collateral Agent shall thereupon be discharged from its duties and obligations hereunder.
(h) In no event shall the Collateral Agent or any other Creditor Party be liable or responsible for any funds or investments of funds held by the Company or any of its Affiliates.
(i) With respect to its pro rata share of the Creditor Obligations, Rabobank and its Affiliates shall have and may exercise the same rights and powers hereunder as, and shall be subject to the same obligations and liabilities as and to the extent set forth herein for, any other Creditor Party, all as if Rabobank were not the Collateral Agent. The term "Creditor Parties" or any similar term shall, unless the context clearly otherwise indicates, include Rabobank or any Affiliate of Rabobank in its individual capacity as a Creditor Party. Rabobank and its Affiliates may lend money to, and generally engage in any kind of business with, any Grantor as if Rabobank were not acting as the Collateral Agent and without any duty to account therefor to the Creditor Parties. Without limiting the foregoing, each Creditor Party acknowledges that (i) Rabobank is the Collateral Agent under the Security Documents, the Credit Agent, the Original Seasonal Agent, a Bank, and a Seasonal Lender, (ii) the corporate finance department of Rabobank is acting as an investment advisor to the Company with respect to the proposed sale by the Company of the property of the Company located at 1487 Xxxxxxxxxx Xxxxxx, Detroit, Michigan, and (iii) Rabobank and its Affiliates may continue to engage in any credit decision with respect to the Amended Credit Agreement or the Seasonal Line of Credit Agreement without any duty to account therefor to any other Creditor Party by reason of its appointment as the Collateral Agent.
Appears in 1 contract
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party acknowledges that U.S. Collateral Agent shall not be the trustee of any U.S. Secured Party. U.S. The Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement or and the U.S. Security Collateral Documents, and U.S. . The Collateral Agent shall not by reason of this Agreement Agreement, the Subsidiary Guaranty or the U.S. Security Documents any Collateral Document be a trustee for any U.S. Secured Benefited Party or have any other fiduciary obligation to any U.S. Secured Benefited Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. The Collateral Agent shall not be responsible to any U.S. Secured Benefited Party for any recitals, statements, representations or warranties contained in this any other Financing Agreement or any Financing Document or in any certificate or other document referred to or provided for in, or received by any of them under, any of the other Financing DocumentsAgreement, or for any representations or warranties not made by it under this Agreement or any Collateral Document, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents Agreement or any other document referred to or provided for therein or any Lien under the U.S. Security Documents any Collateral Document or the perfection or priority of any such Lien or for any failure by the Company, any other party Debtor, any Benefited Party or any other Person to perform any of its respective obligations under any of Financing Agreement. Without limiting the Financing Documentsforegoing, the Collateral Agent shall not be required to take any action under the Subsidiary Guaranty or any Collateral Document, including any action to perfect any security interest granted in the Collateral pursuant to any Collateral Document, or to administer any Collateral unless instructed to do so by the Required Benefited Parties. U.S. The Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither U.S. the Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from its or their own the gross negligence or willful misconductmisconduct of such Person.
(b) U.S. The Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telex, telecopy, telegram or cablereceived in the manner set forth in Section 11(a) reasonably believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person Person or personsPersons, and upon advice and statements of independent legal counsel (including counsel to the Obligors or any of their subsidiaries)counsel, independent accountants and other experts selected by U.S. the Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting uponAgent. Without limiting As to any rights of U.S. Collateral Agent hereundermatters not expressly provided for by this Agreement, U.S. the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligeesthe Required Benefited Parties, and such instructions of Requisite Obligeesthe Required Benefited Parties, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Benefited Parties.
(c) Each The Benefited Parties agree that they will indemnify the Collateral Agent, in its capacity as the Collateral Agent, ratably in accordance with the principal or face amount of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco and the Benefited Obligations held by each U.S. Pledgor (collectively, of the “Indemnifying Parties”) agrees, jointly and severallyBenefited Parties at the time any item described below arises, to indemnify U.S. the extent the Collateral Agent is not reimbursed by the Company or the other Debtors under the Financing Agreements or reimbursed out of any Proceeds pursuant to clause FIRST of Section 4 or clause FIRST of Section 6, for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and or nature whatsoever which that may be imposed on, incurred by or asserted against U.S. the Collateral Agent in any way directly relating to or arising out of any of this Agreement, the U.S. Security Documents, the Financing Documents Subsidiary Guaranty or any other documents contemplated by or referred to therein or the transactions contemplated thereby Collateral Document or the enforcement of any of the terms thereof, including reasonable fees and charges of any thereofcounsel (including the allocated cost of internal counsel); provided, however, provided that no such Indemnifying Benefited Party shall be liable for any of the foregoing such payment to the extent they are finally judicially determined the obligation to make such payment is found in a final judgment by a court of competent jurisdiction to have resulted arisen from the Collateral Agent's gross negligence or willful misconduct misconduct. The obligations of U.S. the Benefited Parties under this subsection 9(c) shall survive the payment in full of the Benefited Obligations and the termination of this Agreement. The Collateral AgentAgent shall provide a detailed written statement of expenses and other amounts for which it seeks reimbursement to the Company with a copy to each Benefited Party.
(d) Except for action expressly required of U.S. the Collateral Agent hereunder, U.S. the Collateral Agent shall, notwithstanding anything to the contrary in Section 7(c) hereofsubsection 9(c), in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its reasonable satisfaction by the U.S. Secured Benefited Parties (or the lenders or holders represented thereby) against any and all additional liability and expense which that may be incurred by it by reason of taking or continuing to take any such action.
(e) The Collateral Agent may deem and treat the payee of any promissory note or other evidence of indebtedness or of any other liability relating to any Benefited Obligation as the owner thereof for all purposes hereof unless and until a written notice of the assignment or transfer thereof, signed by such payee and in form reasonably satisfactory to the Collateral Agent, shall have been filed with the Collateral Agent. Any request, authority or consent of any Person who at the time of making such request or giving such authority or consent is the holder of any such note or other evidence of indebtedness or obligation shall be conclusive and binding on any subsequent holder, transferee or assignee of such note or other evidence of indebtedness or obligation and of any note or notes or other evidences of indebtedness or obligation issued in exchange therefor.
(f) Except as expressly provided herein and in herein, the U.S. Security Documents, U.S. Collateral Agent shall have no duty to take any affirmative steps with respect to the administration or collection of amounts payable in respect of the U.S. Subsidiary Guaranty, the Collateral Documents or the Collateral. U.S. The Collateral Agent shall incur no liability (except to any U.S. Secured Party the extent the actions or omissions of the Collateral Agent in connection therewith constitute gross negligence or willful misconduct) as a result of any sale of any U.S. Collateral Collateral, whether at any public or private sale.
(f) (i) U.S. The Collateral Agent may resign at any time by giving at least five (5) 60 days’ ' notice thereof to the U.S. Secured Parties (such resignation to take effect as hereinafter provided) Lenders and U.S. the other Benefited Parties, and the Collateral Agent may be removed as U.S. the Collateral Agent at any time by Requisite Obligeesthe Required Benefited Parties. In the event of any such resignation or removal of U.S. the Collateral Agent, Requisite Obligees the Required Benefited Parties shall thereupon have the right to appoint a successor U.S. Collateral Agent. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees the Required Benefited Parties and shall have accepted such appointment within thirty (30) 60 days after the notice of the intent of U.S. the Collateral Agent to resignresign or the removal of the Collateral Agent, then the resignation or removal shall nonetheless become effective, the retiring U.S. or removed Collateral Agent may, on behalf shall be discharged from its duties and obligations hereunder and the Benefited Parties acting collectively shall thereafter have the rights and obligations of the other U.S. Secured Parties, appoint Collateral Agent hereunder and under the Collateral Documents until a successor U.S. Collateral AgentAgent has been appointed and accepted such appointment. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(i) subsection shall be a commercial bank or other financial institution organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,0001,000,000,000. After any retiring or removed Collateral Agent's resignation or removal hereunder, the provisions of Section 3 and this Section 9 shall continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was the Collateral Agent.
(ii) Upon the acceptance by a successor Collateral Agent of appointment as the Collateral Agent hereunder, 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, and the retiring or removed Collateral Agent shall thereupon be discharged from its duties and obligations hereunder (if not previously discharged therefrom pursuant to subsection 9(g)(i)).
(iii) Upon any resignation or removal of a Collateral Agent, the retiring or removed Collateral Agent shall execute and deliver such documents and instruments as the applicable successor Collateral Agent or the Required Benefited Parties may reasonably request to vest in such successor Collateral Agent or the Benefited Parties the rights, powers and privileges of the retiring or removed Collateral Agent.
(h) In no event shall the Collateral Agent or any Benefited Party be liable or responsible for any funds or investments of funds held by the Company, any other Debtor or any of their Affiliates.
(i) With respect to their respective shares of the Benefited Obligations, Bank of America and its Affiliates shall have and may exercise the same rights and powers hereunder as, and shall be subject to the same obligations and liabilities as and to the extent set forth herein for, any other Benefited Party, all as if Bank of America were not the Collateral Agent. The terms "Benefited Party", "Required Benefited Parties", "Lender", "Cash Management Bank" or any similar term shall, unless the context clearly otherwise indicates, include Bank of America or any Affiliate of Bank of America in its individual capacity as a Benefited Party, one of the Required Benefited Parties, a Lender or a Cash Management Bank. Bank of America and its Affiliates may lend money to, and generally engage in any kind of business with, the Company or any of its Affiliates as if Bank of America were not acting as the Collateral Agent and without any duty to account therefor to any other Benefited Party. Without limiting the foregoing, each Benefited Party acknowledges that (i) Bank of America is both a Lender and the Agent under the Credit Agreement and the Collateral Agent hereunder and under the Collateral Documents and (ii) Bank of America and its Affiliates may continue to engage in any credit decision with respect to the Credit Agreement or any other Financing Agreement without any duty to account therefor to the Benefited Parties by reason of its appointment as the Collateral Agent.
Appears in 1 contract
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party acknowledges that U.S. Collateral Agent shall not be the trustee of any U.S. Secured Party. U.S. The Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement Agreement, the Collateral Documents or the U.S. Security DocumentsLoan Guaranties, and U.S. the Collateral Agent shall not by reason of this Agreement Agreement, the Collateral Documents or the U.S. Security Documents Loan Guaranties be a trustee for any U.S. Secured Party or have any other fiduciary obligation to any U.S. Secured Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. The Collateral Agent shall not be responsible to any U.S. Secured Party for any recitals, statements, representations or warranties contained in this Agreement Agreement, the Credit Agreement, the Interest Rate Agreements, the Currency Agreements, the Other Permitted Credit Exposure Documents or any other documents evidencing or relating to any Other Permitted Credit Exposure, the New Senior Debt Documents (including the Existing Xxxxx-Xxxxxxxx Senior Secured Notes and the New Senior Debt Documents therefor), the Existing Holdings Senior Notes Indentures, the Existing Holdings Senior Notes, the Existing Holdings Senior Notes Subordinated Guaranty, the Refinancing Senior Debt Documents, the New Junior Debt Documents, the Collateral Documents or the Loan Guaranties (collectively, the "Financing Document Agreements") or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing DocumentsAgreements, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents Agreements or any other document referred to or provided for therein or any Lien under the U.S. Security Collateral Documents or the perfection or priority of any such Lien or for any failure by any other party Party to perform any of its respective obligations under any of the Financing DocumentsAgreements. U.S. The Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither U.S. the Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from its or their own gross negligence or willful misconduct.
(b) U.S. The Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telex, telecopy, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person Person or personsPersons, and upon advice and statements of legal counsel (including counsel to the Obligors Holdings or any Subsidiary of their subsidiariesHoldings), independent accountants and other experts selected by U.S. the Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting uponAgent. Without limiting As to any rights of U.S. Collateral Agent hereundermatters not expressly provided for by this Agreement, U.S. the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligees, and such instructions of Requisite Obligees, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Parties.
(c) Each The Lender Agent on behalf of Crown Holdingsthe Lenders, CCSCeach Interest Rate Exchanger, Crown International, Crown Usco, Crown Euroco each Currency Exchanger and each U.S. Pledgor Other Permitted Credit Exposure Holder (collectively, the “"Paying Indemnifying Parties”") agreesagrees that the Secured Parties represented by it shall indemnify the Collateral Agent, jointly and severallyratably in accordance with the amount of the obligations held by such Secured Parties secured by the Collateral Documents, to indemnify U.S. the extent neither reimbursed by any Grantor under any Collateral Agent Document nor reimbursed out of any Proceeds pursuant to Section 3 hereof and the corresponding provisions of the Collateral Documents for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against U.S. the Collateral Agent in any way relating to or arising out of any of this Agreement, the U.S. Security Documents, the Financing Documents Agreements or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof; provided, however, that no such Indemnifying Secured Party shall be liable for any of the foregoing to the extent they are finally judicially determined to have resulted arise from the gross negligence or willful misconduct of U.S. the Collateral Agent. Each New Senior Debt Representative, on behalf of such New Senior Debt Representative and the holders in respect of which such New Senior Debt Representative is the Representative, agrees that, as provided in Section 3 hereof, Section 12 of the Pledge Agreement, Section 18 of the Security Agreement and the application of proceeds provision of each Mortgage, deductions from distributions otherwise due with respect to such New Senior Debt will be made so that the holders of such New Senior Debt shall share with the Paying Indemnifying Parties, ratably in accordance with the amount of New Senior Debt secured by the Collateral Documents, the payment of the amounts due under the preceding sentence. As provided in Section 3 hereof, and Section 12 of the Pledge Agreement, deductions from distributions otherwise due with respect to any Existing Holdings Senior Notes Trustee on behalf of the holders of Existing Holdings Senior Notes will be made so that such holders of Existing Holdings Senior Notes shall share with the Paying Indemnifying Parties, ratably in accordance with the amount (without duplication) of such Existing Holdings Senior Notes secured by the Pledge Agreement, the payment of the amounts due under the second preceding sentence. Each Refinancing Senior Debt Representative, on behalf of such Refinancing Senior Debt Representative and the holders in respect of which such Refinancing Senior Debt Representative is the Refinancing Senior Debt Representative, agrees that, as provided in Section 3 hereof, and Section 12 of the Pledge Agreement, deductions from distributions otherwise due with respect to such Refinancing Senior Debt will be made so that the holders of such Refinancing Senior Debt will share with the Paying Indemnifying Parties, ratably in accordance with the amount of Refinancing Senior Debt secured by the Pledge Agreement, the payment of the amounts due under the third preceding sentence. Each New Junior Debt Representative, on behalf of such New Junior Debt Representative and the holders in respect of which such New Junior Debt Representative is the New Junior Debt Representative, agrees that, as provided in and Section 3 hereof, and Section 12 of the Pledge Agreement, deductions from distributions otherwise due with respect to such New Junior Debt will be made so that the holders of such New Junior Debt will share with the Paying Indemnifying Parties, ratably in accordance with the amount of New Junior Debt secured by the Pledge Agreement, the payment of the amounts due under the fourth preceding sentence.
(d) Except for action expressly required of U.S. the Collateral Agent hereunder, U.S. the Collateral Agent shall, notwithstanding anything to the contrary in Section 7(c) hereof, in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its satisfaction by the U.S. Secured Parties (or the lenders or holders represented thereby) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.
(e) The Collateral Agent may deem and treat the payee of any promissory note or other evidence of indebtedness relating to the Senior Secured Obligations, Second Priority Secured Obligations or Third Priority Secured Obligations as the owner thereof for all purposes hereof unless and until a written notice of the assignment or transfer thereof, signed by such payee and in form satisfactory to the Collateral Agent, shall have been filed with the Collateral Agent. Any request, authority or consent of any Person who at the time of making such request or giving such authority or consent is the holder of any such note or other evidence of indebtedness shall be conclusive and binding on any subsequent holder, transferee or assignee of such note or other evidence of indebtedness and of any note or notes or other evidences of indebtedness issued in exchange therefor.
(f) Except as expressly provided herein and in the U.S. Security Collateral Documents, U.S. the Collateral Agent shall have no duty to take any affirmative steps with respect to the collection of amounts payable in respect of the U.S. Domestic Collateral. U.S. The Collateral Agent shall incur no liability to any U.S. Secured Party as a result of any sale of any U.S. Domestic Collateral at any private sale.
(fg) (i) U.S. Until such time as the Senior Secured Obligations shall have been indefeasibly paid in full, the Collateral Agent may resign at any time by giving at least five (5) 30 days’ ' notice thereof to the U.S. Secured Parties (such resignation to take effect as hereinafter provided) and U.S. the Collateral Agent may be removed as U.S. Collateral Agent at any time by Requisite Obligees. In the event of such resignation or removal of U.S. the Collateral Agent, Requisite Obligees shall thereupon have the right to appoint a successor U.S. Collateral Agent. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) 30 days after the notice of the intent of U.S. the Collateral Agent to resign, then the retiring U.S. Collateral Agent may, on behalf of the other U.S. Secured Parties, appoint a successor U.S. Collateral Agent. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(ii) (A) shall be a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000500,000,000 and (B) unless an Event of Default or Potential Event of Default shall have occurred and be continuing, shall be approved by Company.
(ii) After the indefeasible payment in full in cash of the Senior Secured Obligations and until such time as the Second Priority Secured Obligations are paid in full, the Collateral Agent may resign at any time by giving at least 30 days' notice thereof to each Existing Holdings Senior Notes Trustee (only if the Existing Holdings Senior Notes are then secured by any of the Domestic Collateral), and each Refinancing Senior Debt Representative (to the extent such Refinancing Senior Debt is then secured by any of the Domestic Collateral), (such resignation to take effect as hereinafter provided) and the Collateral Agent may be removed as Collateral Agent at any time by the appropriate Requisite Obligees. In the event of any such resignation or removal of the Collateral Agent, such Requisite Obligees shall thereupon have the right to appoint a successor Collateral Agent. If no successor Collateral Agent shall have been so appointed within 30 days after the notice of the intent of the Collateral Agent to resign, then the retiring Collateral Agent may, on behalf of the Requisite Obligees, appoint a successor Collateral Agent. Any successor Collateral Agent appointed pursuant to this clause (ii) (A) shall be a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000 and (B) unless an Event of Default or Potential Event of Default shall have occurred and be continuing, shall, unless such successor Collateral Agent is appointed by the retiring Collateral Agent, be approved by Company.
(iii) After the indefeasible payment in full in cash of all Senior Secured Obligations and Second Priority Secured Obligations and until such time as the Third Priority Secured Obligations are paid in full, the Collateral Agent may resign at any time by giving at least 30 days' notice thereof to each New Junior Debt Representative (to the extent such New Junior Debt is then secured by any of the Domestic Collateral), (such resignation to take effect as hereinafter provided) and the Collateral Agent may be removed as Collateral Agent at any time by the appropriate Requisite Obligees. In the event of any such resignation or removal of the Collateral Agent, such Requisite Obligees shall thereupon have the right to appoint a successor Collateral Agent. If no successor Collateral Agent shall have been so appointed within 30 days after the notice of the intent of the Collateral Agent to resign, then the retiring Collateral Agent may, on behalf of the Requisite Obligees, appoint a successor Collateral Agent. Any successor Collateral Agent appointed pursuant to this clause (iii) (A) shall be a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000 and (B) unless an Event of Default or Potential Event of Default shall have occurred and be continuing, shall, unless such successor Collateral Agent is appointed by the retiring Collateral Agent, be approved by Company.
(iv) Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, such successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Collateral Agent, and the retiring or removed Collateral Agent shall thereupon be discharged from its duties and obligations hereunder. After any retiring or removed Collateral Agent's resignation or removal hereunder as Collateral Agent, the provisions of this Section 7 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 the Collateral Agent.
(v) In no event shall Collateral Agent or any Secured Party be liable or responsible for any funds or investments of funds held by any Grantor or any affiliates thereof.
Appears in 1 contract
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party acknowledges that U.S. Collateral Agent shall not be the trustee of any U.S. Secured Party. U.S. The Collateral Agent shall have no duties or responsibilities to the Secured Parties except those expressly set forth in this Agreement or Agreement, the U.S. Security Documents, Documents and U.S. the Guaranties and the Collateral Agent shall not by reason of this Agreement Agreement, the Security Documents or the U.S. Security Documents Guaranties be a trustee for any U.S. Secured Party or have any other fiduciary obligation to any U.S. Secured Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. The Collateral Agent shall not be responsible to any U.S. Secured Party for any recitals, statements, representations or warranties contained in this Agreement, the Revolving Credit Agreement, the Term Loan Credit Agreement, the Loan Documents and the Hedge Agreements (as defined in each of the Revolving Credit Agreement or any and the Term Loan Credit Agreement; collectively, the "Financing Document Agreements") or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing DocumentsAgreements, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents Agreements or any other document referred to or provided for therein or any Lien under the U.S. Security Documents or the perfection or priority of any such Lien or the value or condition of the Collateral or the title of the Loan Parties to the Collateral or for any failure by any other party Loan Party to perform any of its respective obligations under any of the Financing DocumentsAgreements. U.S. The Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, responsible for the negligence or misconduct of any such agents or attorneys-in-in- fact selected by it with reasonable care. Neither U.S. the Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from its or their own gross negligence or willful misconduct.
(b) U.S. The Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telex, telecopy, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person Person or personsPersons, and upon advice and statements of legal counsel (including counsel to the Obligors Company or any Subsidiary of their subsidiariesthe Company), independent accountants and other experts selected by U.S. the Collateral Agent. The Collateral Agent shall not be deemed to have actual, constructive, direct or indirect notice or knowledge of the occurrence of any Acceleration unless and until the Collateral Agent shall have received a Notice of Acceleration. The Collateral Agent shall have no obligation whatsoever either prior to or after receiving a Notice of Acceleration to inquire whether an Acceleration has, in fact, occurred and shall in all cases be entitled to rely conclusively, and shall be fully protected in acting or refraining from so acting uponrelying, on any Notice of Acceleration certificate so furnished to it. Without limiting As to any rights of U.S. Collateral Agent hereundermatters not expressly provided for by this Agreement, U.S. the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligees, and such instructions of Requisite Obligees, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Parties.
(c) Each The Revolving Facility Lenders, the Term Facility Lenders and the Lender Counterparties (by their acceptance of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco and each U.S. Pledgor the benefits of this Agreement) (collectively, the “"Paying Indemnifying Parties”") agreesagree that such Secured Parties shall indemnify the Collateral Agent, jointly its Affiliates and severallytheir respective directors, officers, employees and agents in its capacity as Collateral Agent, ratably in accordance with the amount of the Secured Obligations held by such Secured Parties to indemnify U.S. Collateral Agent the extent neither reimbursed by any Loan Party nor reimbursed out of any proceeds, recoveries or payments under any Security Documents or the Guaranties, for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which that may be imposed on, incurred by or asserted against U.S. the Collateral Agent in any way relating to or arising out of any of this Agreement, the U.S. Security Documents, the Financing Documents Agreements or any other documents document contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof; provided, however, that no such Indemnifying Secured -------- ------- Party shall be liable for any of the foregoing to the extent they are finally judicially determined to have resulted arise from the gross negligence or willful misconduct of U.S. the Collateral Agent.
(d) Except for action expressly required of U.S. Collateral Agent hereunder, U.S. The Collateral Agent shall, notwithstanding anything to the contrary in Section 7(c6(c) hereof, in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its satisfaction by the U.S. Secured Parties (or the lenders or holders represented thereby) against any and all liability and expense which that may be incurred by it by reason of taking or continuing to take any such action.
(e) The Collateral Agent may deem and treat the payee of any promissory note or other evidence of indebtedness relating to the Secured Obligations as the owner thereof for all purposes hereof unless and until a written notice of the assignment or transfer thereof, signed by such payee and in form satisfactory to the Collateral Agent, shall have been filed with the Collateral Agent. Any request, authority or consent of any Person who at the time of making such request or giving such authority or consent is the holder of any such note or other evidence of indebtedness shall be conclusive and binding on any subsequent holder, transferee or assignee of such note or other evidence of indebtedness and of any note or notes or other evidences of indebtedness issued in exchange therefor.
(f) Except as expressly provided herein and herein, in the U.S. Security DocumentsDocuments or in the Guaranties, U.S. the Collateral Agent shall have no duty to take any affirmative steps with respect to the collection of amounts payable in respect of the U.S. CollateralCollateral or under the Guaranties. U.S. The Collateral Agent shall incur no liability to any U.S. Secured Party (absent gross negligence or willful misconduct) as a result of any sale of any U.S. Collateral at any private sale.
(f) (i) U.S. The Collateral Agent may resign at any time by giving at least five (5) days’ 30 days notice thereof to the U.S. Secured Parties (such resignation to take effect as hereinafter provided) and U.S. the Collateral Agent may be removed as U.S. Collateral Agent at any time by Requisite Obligees. In the event of any such resignation or removal of U.S. the Collateral Agent, Requisite Obligees shall thereupon have the right to appoint a successor U.S. Collateral AgentAgent which appointment shall, unless an Event of Default has occurred and is continuing, be subject to the approval of the Company. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) 30 days after the notice of the intent of U.S. the Collateral Agent to resign, then the retiring U.S. Collateral Agent may, on behalf of the other U.S. Secured Parties, appoint a successor U.S. Collateral Agent. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(ii) shall be a bank party to the Revolving Credit Agreement or the Term Loan Credit Agreement or subject to the consent of Company (such consent not to be unreasonably withheld) a commercial bank organized XII-11 under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000.
(ii) Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, such successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Collateral Agent, and the retiring or removed Collateral Agent shall thereupon be discharged from its duties and obligations hereunder. After any retiring or removed Collateral Agent's resignation or removal hereunder as Collateral Agent, the provisions of this Section 6 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 the Collateral Agent.
Appears in 1 contract
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party of the First Priority Trustee on behalf of itself and the Holders of First Priority Notes and the Second Priority Trustee on behalf of itself and the Holders of Second Priority Notes hereby acknowledges that U.S. the Collateral Agent shall not be the trustee of any U.S. Secured Party. U.S. The Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement or Agreement, the U.S. Security Documents, and U.S. the Collateral Agent shall not by reason of this Agreement or any of the U.S. Security Collateral Documents be a trustee for any U.S. Secured Party or have any other fiduciary obligation to any U.S. Secured Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. The Collateral Agent shall not be responsible to any U.S. Secured Party for any recitals, statements, representations or warranties contained in this Agreement or any Financing Collateral Document or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing Notes Documents, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Notes Documents or any other document referred to or provided for therein or any Lien under the U.S. Security Collateral Documents or the perfection or priority of any such Lien or for any failure by any other party to perform any of its respective obligations under any of the Financing Notes Documents. U.S. The Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither U.S. the Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from its or their own gross negligence or willful misconduct.
(b) U.S. The Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telex, telecopy, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person or persons, and upon advice and statements of legal counsel (including counsel to the Obligors or any of their subsidiaries)counsel, independent accountants and other experts selected by U.S. the Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting uponAgent. Without limiting any rights of U.S. the Collateral Agent hereunder, U.S. the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligees, and either Trustee (unless such instructions are on their face contrary to the provisions of Requisite Obligeesthis Agreement), and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured PartiesTrustees.
(c) Each of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco and each U.S. Pledgor (collectively, the “Indemnifying Parties”) agrees, jointly and severally, to indemnify U.S. Collateral Agent for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against U.S. Collateral Agent in any way relating to or arising out of any of this Agreement, the U.S. Security Documents, the Financing Documents or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof; provided, however, that no such Indemnifying Party shall be liable for any of the foregoing to the extent they are finally judicially determined to have resulted from the gross negligence or willful misconduct of U.S. Collateral Agent.
(d) Except for action expressly required of U.S. Collateral Agent hereunder, U.S. Collateral Agent shall, notwithstanding anything to the contrary in Section 7(c) hereof, in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its satisfaction by the U.S. Secured Parties (or the lenders or holders represented thereby) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.
(e) Except as expressly provided herein and in the U.S. Security Collateral Documents, U.S. the Collateral Agent shall have no duty to take any affirmative steps with respect to the collection of amounts payable in respect of the U.S. Collateral. U.S. The Collateral Agent shall incur no liability to any U.S. Secured Party as a result of any sale of any U.S. Collateral at any private sale.
(f) (i) U.S. The Collateral Agent may resign at any time by giving at least five (5) 5 days’ ' notice thereof to the U.S. Secured Parties Trustees (such resignation to take effect as hereinafter provided) and U.S. the Collateral Agent may be removed as U.S. Collateral Agent at any time by Requisite Obligeesthe agreement of each of the Trustees. In the event of such resignation or removal of U.S. the Collateral Agent, Requisite Obligees the Trustees shall thereupon have the right to appoint a successor U.S. Collateral Agent. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees the Trustees and shall have accepted such appointment within thirty (30) 30 days after the notice of the intent of U.S. the Collateral Agent to resign, then the retiring U.S. Collateral Agent may, on behalf of the other U.S. Secured Parties, appoint a successor U.S. Collateral Agent. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(i) shall be a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000.
(ii) Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, such successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Collateral Agent, and the retiring or removed Collateral Agent shall thereupon be discharged from its duties and obligations hereunder. After any retiring or removed Collateral Agent's resignation or removal hereunder as Collateral Agent, the provisions of this Section 13 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 the Collateral Agent.
(iii) In no event shall the Collateral Agent or any Secured Party be liable or responsible for any funds or investments of funds held by any Pledgor or any affiliate thereof.
(e) Each of the Secured Parties understands and acknowledges that the Collateral Agent and its affiliates may also hold indebtedness of the Company and its subsidiaries, be an agent under any of the Notes Documents and act in other financial advisory or underwriting capacities on behalf of the Company and any of its subsidiaries, and waives any actual or potential conflict of interest resulting therefrom.
(f) Each of the parties hereto authorizes the Collateral Agent to execute and file on its behalf all such further documents and instruments, and authorizes the Collateral Agent to perform such other acts, as may be reasonably necessary or advisable to effectuate the purposes of this Agreement.
Appears in 1 contract
Samples: Priority Intercreditor Agreement (Trump Indiana Inc)
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party acknowledges that U.S. Collateral Agent shall not be the trustee of any U.S. Secured Party. U.S. Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement or and the U.S. Security Documents. Although Collateral Agent shall comply with its custodial duties in Section 4(a), and U.S. Collateral Agent shall not by reason of this Agreement Agreement, the Guaranties or the U.S. Security Documents be a trustee or fiduciary for any U.S. Secured other Credit Party or have any other fiduciary obligation to to, or fiduciary relationship with, any U.S. Secured other Credit Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. Collateral Agent shall not be responsible to any U.S. Secured other Credit Party for any recitalsrecital, statementsstatement, representations representation or warranties warranty contained in this Agreement or any Financing Document Agreement or in any certificate or other document referred to or provided for in, or received by any of them Credit Party under, any of the Financing DocumentsAgreement, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents Agreement or any other document referred to or provided for therein or any Lien under any of the U.S. Security Documents or the perfection or priority of any such Lien or for any failure by any Obligor, any other party Credit Party or any other Person to perform any of its respective obligations under any of Financing Agreement. Without limiting the Financing Documentsforegoing, Collateral Agent shall not be required to take any action under any Guaranty or Security Document, including any action to perfect any security interest granted in the Collateral pursuant to such Security Document, or to administer any Collateral unless instructed to do so by the Majority Credit Parties. U.S. Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents agent or attorneysattorney-in-fact selected by it with reasonable care. Neither U.S. Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from its the extent such action or their own omission constituted gross negligence or willful misconductmisconduct of such Person. Each Credit Party agrees that (i) each Funding Agent shall be an agent of Collateral Agent for purposes of this Agreement, (ii) all indemnities and other protections granted to Collateral Agent hereunder shall be equally applicable to each Funding Agent, (iii) Collateral Agent may direct an Obligor to make payments with respect to such Obligor’s Credit Obligations (other than Global Credit Agreement Obligations, which shall be paid to the applicable Funding Agent in accordance with the terms of the Global Credit Agreement) to such Funding Agent as Collateral Agent may from time to time determine and (iv) any Recovery received by a Funding Agent shall be deemed to have been received by Collateral Agent.
(b) U.S. Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telephone, telex, telecopyfacsimile, e-mail, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person Person or personsPersons, and upon advice and statements of independent legal counsel (including counsel to the Obligors or any of their subsidiaries)counsel, independent accountants and other experts selected by U.S. Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting uponAgent. Without limiting As to any rights of U.S. Collateral Agent hereundermatters not expressly provided for by this Agreement, U.S. Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligeesthe Majority Credit Parties, and such instructions of Requisite Obligeesthe Majority Credit Parties, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Credit Parties.
(c) Each of Crown HoldingsBy its signature hereto, CCSCProLogis agrees that it will indemnify Collateral Agent, Crown International, Crown Usco, Crown Euroco and each U.S. Pledgor (collectively, the “Indemnifying Parties”) agrees, jointly and severallyin its capacity as Collateral Agent, to indemnify U.S. the extent Collateral Agent is not reimbursed pursuant to clause FIRST of Section 4(a), for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and or nature whatsoever which that may be imposed on, incurred by or asserted against U.S. Collateral Agent in any way relating to or arising out of any of this Agreement, the U.S. Security Documents, the Financing Documents any Guaranty or any other documents contemplated by or referred to therein or the transactions contemplated thereby Security Document or the enforcement of any of the terms of any thereof, including reasonable fees and expenses of counsel (including the reasonable allocated cost of internal counsel) (collectively, the “Indemnified Liabilities”); provided, however, provided that no such Indemnifying Party ProLogis shall not be liable for any of the foregoing Indemnified Liabilities to the extent they such Indemnified Liabilities are finally judicially determined found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted arisen from the Collateral Agent’s gross negligence or willful misconduct misconduct. To the extent ProLogis fails to reimburse Collateral Agent for any amount that is payable pursuant to the foregoing sentence and Collateral Agent does not receive payment thereof pursuant to clause FIRST of U.S. Section 4(a), the Voting Credit Parties agree that they will indemnify Collateral Agent, in its capacity as Collateral Agent, for such amount, ratably in accordance with the amount of the Voting Obligations held by such Voting Credit Parties. The obligations of ProLogis and the Voting Credit Parties under this Section 9(c) shall survive the payment in full of the Credit Obligations and the termination of this Agreement.
(d) Except for action expressly required of U.S. Collateral Agent hereunder, U.S. Collateral Agent shall, notwithstanding anything to the contrary in Section 7(c) hereof9(c), in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its reasonable satisfaction by the U.S. Secured Credit Parties (or the lenders or holders represented thereby) against any and all liability and expense which that may be incurred by it by reason of taking or continuing to take any such action.
(e) Except as expressly provided herein and in the U.S. Security Documents, U.S. Collateral Agent shall have no duty to take any affirmative steps with respect to the collection of amounts payable in respect of the U.S. Collateral. U.S. Collateral Agent shall incur no liability to any U.S. Secured Party as a result of any sale of any U.S. Collateral at any private sale.
(f) (i) U.S. Collateral Agent may resign at any time by giving at least five (5) days’ notice thereof to the U.S. Secured Parties (such resignation to take effect as hereinafter provided) and U.S. Collateral Agent may be removed as U.S. Collateral Agent at any time by Requisite Obligees. In the event of such resignation or removal of U.S. Collateral Agent, Requisite Obligees shall thereupon have the right to appoint a successor U.S. Collateral Agent. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) days after the notice of the intent of U.S. Collateral Agent to resign, then the retiring U.S. Collateral Agent may, on behalf of the other U.S. Secured Parties, appoint a successor U.S. Collateral Agent. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(i) shall be a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000.
Appears in 1 contract
Samples: Security Agency Agreement (Prologis)
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party acknowledges that U.S. Collateral Agent shall not be the trustee of any U.S. Secured Party. U.S. A. The Collateral Agent shall have no duties or responsibilities to the Secured Parties except those expressly set forth in this Agreement or and the U.S. Security Documents, Collateral Documents and U.S. the Collateral Agent shall not by reason of this Agreement or the U.S. Security Collateral Documents be a trustee for any U.S. Secured Party or have any other fiduciary obligation to any U.S. Secured Party (including any obligation under other than, if the Exchange Notes are subject to the Trust Indenture Act of 1939, as amendedamended (the "TIA"), any obligation under the TIA). U.S. The Collateral Agent shall not be responsible to any U.S. Secured Party for any recitals, statements, representations or warranties contained in this Agreement, the Credit Agreement or the Senior Secured Credit Agreement or any related loan documents (collectively, the "Financing Document Agreements") or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing DocumentsAgreements, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents Agreements or any other document referred to or provided for therein or any Lien lien under the U.S. Security Collateral Documents or the perfection or priority of any such Lien lien or the value or condition of the Collateral or the title of the Borrower or its Subsidiaries to the Collateral or for any failure by any other party Borrower or its Subsidiaries to perform any of its respective obligations under any of the Financing DocumentsAgreements. U.S. The Collateral Agent may employ agents and sub-collateral agents and attorneys-attorneys- in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, responsible for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither U.S. the Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from the extent of its or their own gross negligence or willful misconduct.
(b) U.S. B. The Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telex, telecopy, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person Person or personsPersons, and upon advice and statements of legal counsel (including counsel to the Obligors Borrower or any Subsidiary of their subsidiariesthe Borrower), independent accountants and other experts selected by U.S. Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting upon. Without limiting any rights of U.S. Collateral Agent hereunder, U.S. Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligees, and such instructions of Requisite Obligees, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Parties.
(c) Each of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco and each U.S. Pledgor (collectively, the “Indemnifying Parties”) agrees, jointly and severally, to indemnify U.S. Collateral Agent for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against U.S. Collateral Agent in any way relating to or arising out of any of this Agreement, the U.S. Security Documents, the Financing Documents or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof; provided, however, that no such Indemnifying Party shall be liable for any of the foregoing to the extent they are finally judicially determined to have resulted from the gross negligence or willful misconduct of U.S. Collateral Agent.
(d) Except for action expressly required of U.S. Collateral Agent hereunder, U.S. Collateral Agent shall, notwithstanding C. Notwithstanding anything to the contrary in Section 7(c) hereofcontained herein, in all cases the Collateral Agent shall not be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its satisfaction by the U.S. Secured Parties (or the lenders or holders represented thereby) against any and all liability and expense which may be incurred by it by reason of taking or continuing required to take any such action.
(e) Except as expressly provided herein and action that is in the U.S. Security Documents, U.S. Collateral Agent shall have no duty its opinion contrary to take any affirmative steps with respect law or to the collection terms of amounts payable in respect this Agreement or any or all of the U.S. Collateral. U.S. Collateral Agent shall incur no liability to any U.S. Secured Party as a result of any sale of any U.S. Collateral at any private sale.
(f) (i) U.S. Collateral Agent may resign at any time by giving at least five (5) days’ notice thereof to the U.S. Secured Parties (such resignation to take effect as hereinafter provided) and U.S. Collateral Agent may be removed as U.S. Collateral Agent at any time by Requisite Obligees. In the event of such resignation Documents or removal of U.S. Collateral Agent, Requisite Obligees shall thereupon have the right to appoint a successor U.S. Collateral Agent. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) days after the notice of the intent of U.S. Collateral Agent to resign, then the retiring U.S. Collateral Agent may, on behalf of the other U.S. Secured Parties, appoint a successor U.S. Collateral Agent. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(i) shall be a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000.which
Appears in 1 contract
Samples: Intercreditor and Collateral Agency Agreement (FWT Inc)
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party acknowledges that U.S. Collateral Agent shall not be the trustee of any U.S. Secured Party. U.S. The Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement or and the U.S. Security Documents, and U.S. . The Collateral Agent shall not by reason of this Agreement or the U.S. Security Documents be a trustee for any U.S. Secured Benefited Party or have any other fiduciary obligation whatsoever to any U.S. Secured Benefited Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. The Collateral Agent shall not be responsible to any U.S. Secured Benefited Party for any recitals, statements, representations or warranties contained in this Agreement or any Financing Document Agreement or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing DocumentsAgreement, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents Agreement or any other document referred to or provided for therein or any Lien lien under any of the U.S. Security Documents or the Guaranties or the perfection or priority of any such Lien lien or for any failure by the Company, any other party Obligor, any Benefited Party or any other Person to perform any of its respective obligations under any of Financing Agreement. Without limiting the Financing foregoing, the Collateral Agent shall not be required to take any action under any Security Document, any action to perfect any security interest granted in the Collateral pursuant to the Security Documents, or to administer any Collateral unless instructed to do so by Both Representatives. U.S. The Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither U.S. the Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from its or their own the gross negligence or willful misconductmisconduct of such Person.
(b) U.S. The Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telextelephone, telecopyfacsimile, e-mail, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person Person or personsPersons, and upon advice and statements of independent legal counsel (including counsel to the Obligors or any of their subsidiaries)counsel, independent accountants and other experts selected by U.S. the Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting uponAgent. Without limiting As to any rights of U.S. Collateral Agent hereundermatters not expressly provided for by this Agreement, U.S. the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite ObligeesBoth Representatives, and such instructions of Requisite ObligeesBoth Representatives, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Benefited Parties.
(c) Each The Representatives shall cause their Represented Parties to indemnify the Collateral Agent, in its capacity as the Collateral Agent, ratably in accordance with the amount of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco and each U.S. Pledgor (collectively, the “Indemnifying Benefited Obligations held by such Benefited Parties”) agrees, jointly and severally, to indemnify U.S. the extent the Collateral Agent is not reimbursed by Pledgors under the Security Documents or the Guaranties or reimbursed out of any Proceeds pursuant to clause FIRST of Section 4(a), for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and or nature whatsoever which that may be imposed on, incurred by or asserted against U.S. the Collateral Agent in any way relating to or arising out of this Agreement or any of this Agreement, the U.S. Security Documents, the Financing Documents or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof, including fees and charges of counsel (including the allocated cost of internal counsel); provided, however, provided that no such Indemnifying Represented Party shall be liable for any of the foregoing such payment to the extent they are finally judicially determined the obligation to make such payment is found in a final judgment by a court of competent jurisdiction to have resulted arisen from the Collateral Agent's gross negligence or willful misconduct misconduct. The obligations of U.S. Collateral Agentthe Representatives and the Represented Parties under this Section 7(c) shall survive the payment in full of the Benefited Obligations and the termination of this Agreement.
(d) Except for action expressly required of U.S. the Collateral Agent hereunder, U.S. the Collateral Agent shall, notwithstanding anything to the contrary in Section 7(c) hereof), in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its reasonable satisfaction by the U.S. Secured Represented Parties (or the lenders or holders represented thereby) against any and all liability and expense which that may be incurred by it by reason of taking or continuing to take any such action.
(e) The Collateral Agent may deem and treat the payee of any promissory note or other evidence of indebtedness or obligation relating to any Benefited Obligation as the owner thereof for all purposes hereof unless and until a written notice of the assignment or transfer thereof, signed by such payee and in form reasonably satisfactory to the Collateral Agent, shall have been filed with the Collateral Agent. Any request, authority or consent of any Person who at the time of making such request or giving such authority or consent is the holder of any such note or other evidence of indebtedness or obligation shall be conclusive and binding on any subsequent holder, transferee or assignee of such note or other evidence of indebtedness or obligation and of any note or notes or other evidences of indebtedness or obligation issued in exchange therefor.
(f) Except as expressly provided herein and in herein, the U.S. Security Documents, U.S. Collateral Agent shall have no duty to take any affirmative steps with respect to the administration or collection of amounts payable in respect of the U.S. Security Documents or the Collateral. U.S. The Collateral Agent shall incur no liability (except to any U.S. Secured Party the extent the actions or omissions of the Collateral Agent in connection therewith constitute gross negligence or willful misconduct) as a result of any sale of any U.S. Collateral Collateral, whether at any public or private sale.
(f) (i) U.S. The Collateral Agent may resign at any time by giving at least five (5) 30 days’ ' notice thereof to the U.S. Secured Parties (such resignation to take effect as hereinafter provided) Trustee and U.S. the Bank Agent, and the Collateral Agent may be removed as U.S. the Collateral Agent at any time by Requisite ObligeesBoth Representatives. In the event of any such resignation or removal of U.S. the Collateral Agent, Requisite Obligees the Representatives shall thereupon have the right to appoint a successor U.S. Collateral Agent. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) days after , subject to the notice approval of the intent of U.S. Collateral Agent to resign, then the retiring U.S. Collateral Agent may, on behalf of the other U.S. Secured Parties, appoint a successor U.S. Collateral AgentBoth Representatives. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(i) shall be a commercial bank or other financial institution organized under the laws of the United States of America or any state thereof and having (1) a combined capital and surplus of at least $500,000,000500,000,000 and (2) a rating on its long-term senior unsecured indebtedness of "A2" or better by Xxxxx'x Investors Service, Inc. or "A" or better by Standard & Poor's Corporation. After any resigning or removed Collateral Agent's resignation or removal hereunder, the provisions of Section 3 and this Section 7 shall continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was the Collateral Agent.
(ii) Upon the acceptance by a successor Collateral Agent of appointment as the Collateral Agent hereunder, 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, and the retiring or removed Collateral Agent shall thereupon be discharged from its duties and obligations hereunder.
(h) In no event shall the Collateral Agent or any other Benefited Party be liable or responsible for any funds or investments of funds held by the Company or any of its Affiliates.
(i) With respect to its pro rata share of the Benefited Obligations, [PNC Bank, National Association and its Affiliates] shall have and may exercise the same rights and powers hereunder as, and is subject to the same obligations and liabilities as and to the extent set forth herein for, any other Benefited Party, all as if [PNC Bank, National Association] were not the Collateral Agent. The terms "Benefited Parties," or "Bank Lenders" or any similar term shall, unless the context clearly otherwise indicates, include [PNC Bank, National Association or any Affiliate of PNC Bank, National Association] in its individual capacity as a Benefited Party or Bank Lender. [PNC Bank, National Association and its Affiliates] may lend money to, and generally engage in any kind of business with, any Obligor as if [PNC Bank, National Association] were not acting as the Collateral Agent and without any duty to account therefor to the Benefited Parties. Without limiting the foregoing, each Benefited Party acknowledges that (i) [PNC Bank, National Association] is a Bank Lender under the Credit Agreement and the Collateral Agent under the Security Documents and (ii) [PNC Bank, National Association and its Affiliates] may continue to engage in any credit decision with respect to the Credit Agreement without any duty to account therefor to the Benefited Parties by reason of its appointment as the Collateral Agent.
Appears in 1 contract
Samples: Credit Agreement (Glatfelter P H Co)
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Euro Secured Party acknowledges that U.S. the Euro Collateral Agent shall not be the trustee of any U.S. Euro Secured Party. U.S. The Euro Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement or the U.S. Euro Security Documents, and U.S. the Euro Collateral Agent shall not by reason of this Agreement or the U.S. Euro Security Documents be a trustee for any U.S. Euro Secured Party or have any other fiduciary obligation to any U.S. Euro Secured Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. The Euro Collateral Agent shall not be responsible to any U.S. Euro Secured Party for any recitals, statements, representations or warranties contained in this Agreement or any Financing Document or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing Documents, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents or any other document referred to or provided for therein or any Lien under the U.S. Euro Security Documents or the perfection or priority of any such Lien or for any failure by any other party to perform any of its respective obligations under any of the Financing Documents. U.S. The Euro Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither U.S. the Euro Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewithherewith (including as mandataire for purposes of the fifth paragraph of subsection 3(a)), except for actions that are finally judicially determined to have resulted from its or their own gross negligence or willful misconduct.
(b) U.S. The Euro Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telex, telecopy, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person or persons, and upon advice and statements of legal counsel (including counsel to the Obligors Crown Euroco or any of their its subsidiaries), independent accountants and other experts selected by U.S. the Euro Collateral Agent and shall in all cases be fully protected in acting or refraining from acting so acting upon. Without limiting any rights of U.S. the Euro Collateral Agent hereunder, U.S. the Euro Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligees, and such instructions of Requisite Obligees, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Euro Secured Parties.
(c) Each of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco and each U.S. Euro Pledgor (collectively, the “"Indemnifying Parties”") agrees, jointly and severally, to indemnify U.S. the Euro --------------------- Collateral Agent for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against U.S. the Euro Collateral Agent (including as mandataire for purposes of the fifth paragraph of subsection 3(a)) in any way relating to or arising out of any of this Agreement, the U.S. Euro Security Documents, the Financing Documents or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof; provided, however, that no such Indemnifying Party shall be liable for any of ------------------ the foregoing to the extent they are finally judicially determined to have resulted from the gross negligence or willful misconduct of U.S. the Euro Collateral Agent.
(d) Except for action expressly required of U.S. the Euro Collateral Agent hereunder, U.S. the Euro Collateral Agent shall, notwithstanding anything to the contrary in Section 7(c9(c) hereof, in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Euro Security Documents (including as mandataire for purposes of the fifth paragraph of subsection 3(a)) unless it shall be further indemnified to its satisfaction by the U.S. Euro Secured Parties (or the lenders or holders represented thereby) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.
(e) Except as expressly provided herein and in the U.S. Euro Security Documents, U.S. the Euro Collateral Agent shall have no duty to take any affirmative steps with respect to the collection of amounts payable in respect of the U.S. Euro Collateral. U.S. The Euro Collateral Agent shall incur no liability to any U.S. Euro Secured Party as a result of any sale of any U.S. Euro Collateral at any private sale.
(f) (i) U.S. The Euro Collateral Agent may resign at any time by giving at least five (5) 5 days’ ' notice thereof to the U.S. Euro Secured Parties (such resignation to take effect as hereinafter provided) and U.S. the Euro Collateral Agent may be removed as U.S. Euro Collateral Agent at any time by Requisite Obligees. In the event of such resignation or removal of U.S. the Euro Collateral Agent, Requisite Obligees shall thereupon have the right to appoint a successor U.S. Euro Collateral Agent. If no successor U.S. Euro Collateral Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) 30 days after the notice of the intent of U.S. the Euro Collateral Agent to resign, then the retiring U.S. Euro Collateral Agent may, on behalf of the other U.S. Euro Secured Parties, appoint a successor U.S. Euro Collateral Agent. Any successor U.S. Euro Collateral Agent appointed pursuant to this clause (f)(i) shall be a commercial bank organized under the ------------ laws of a member state of the United States of America or any state thereof European Union and having a combined capital and surplus of at least $500,000,000(euro)500,000,000.
(ii) Upon the acceptance of any appointment as Euro Collateral Agent hereunder by a successor Euro Collateral Agent, such successor Euro Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Euro Collateral Agent, and the retiring or removed Euro Collateral Agent shall thereupon be discharged from its duties and obligations hereunder and under the Global Participation Agreement and the Euro Security Documents. After any retiring or removed Euro Collateral Agent's resignation or removal hereunder as Euro Collateral Agent, the provisions of this Section 9 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 the Euro Collateral Agent.
(iii) In no event shall the Euro Collateral Agent or any Euro Secured Party be liable or responsible for any funds or investments of funds held by any Euro Pledgor or any affiliates thereof.
(g) Each of the Euro Secured Parties understands and acknowledges that the Euro Collateral Agent and its Affiliates may also hold indebtedness of Crown Holdings or any of its subsidiaries, be an agent under any of the Financing Documents and act in other financial advisory or underwriting capacities on behalf of Crown Holdings or any of its subsidiaries, and waives any actual or potential conflict of interest resulting therefrom.
Appears in 1 contract
Samples: Intercreditor and Collateral Agency Agreement (Crown Holdings Inc)
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Euro Secured Party acknowledges that U.S. Euro Collateral Agent shall not be the trustee of any U.S. Euro Secured Party. U.S. Euro Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement or the U.S. Euro Security Documents, and U.S. Euro Collateral Agent shall not by reason of this Agreement or the U.S. Euro Security Documents be a trustee for any U.S. Euro Secured Party or have any other fiduciary obligation to any U.S. Euro Secured Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. Euro Collateral Agent shall not be responsible to any U.S. Euro Secured Party for any recitals, statements, representations or warranties contained in this Agreement or any Financing Document or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing Documents, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents or any other document referred to or provided for therein or any Lien under the U.S. Euro Security Documents or the perfection or priority of any such Lien or for any failure by any other party to perform any of its respective obligations under any of the Financing Documents. U.S. Euro Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither U.S. Euro Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewithherewith (including as mandataire for purposes of the fifth paragraph of subsection 3(a)), except for actions that are finally judicially determined to have resulted from its or their own gross negligence or willful misconduct.
(b) U.S. Euro Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telex, telecopy, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person or persons, and upon advice and statements of legal counsel (including counsel to the Obligors Crown Euroco or any of their its subsidiaries), independent accountants and other experts selected by U.S. Euro Collateral Agent and shall in all cases be fully protected in acting or refraining from acting so acting upon. Without limiting any rights of U.S. Euro Collateral Agent hereunder, U.S. Euro Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligees, and such instructions of Requisite Obligees, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Euro Secured Parties.
(c) Each of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco and each U.S. Euro Pledgor (collectively, the “Indemnifying Parties”) agrees, jointly and severally, to indemnify U.S. Euro Collateral Agent for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against U.S. Euro Collateral Agent (including as mandataire for purposes of the fifth paragraph of subsection 3(a)) in any way relating to or arising out of any of this Agreement, the U.S. Euro Security Documents, the Financing Documents or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof; provided, however, that no such Indemnifying Party shall be liable for any of the foregoing to the extent they are finally judicially determined to have resulted from the gross negligence or willful misconduct of U.S. Euro Collateral Agent.
(d) Except for action expressly required of U.S. Euro Collateral Agent hereunder, U.S. Euro Collateral Agent shall, notwithstanding anything to the contrary in Section 7(c9(c) hereof, in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Euro Security Documents (including as mandataire for purposes of the fifth paragraph of subsection 3(a)) unless it shall be further indemnified to its satisfaction by the U.S. Euro Secured Parties (or the lenders or holders represented thereby) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.
(e) Except as expressly provided herein and in the U.S. Euro Security Documents, U.S. Euro Collateral Agent shall have no duty to take any affirmative steps with respect to the collection of amounts payable in respect of the U.S. Euro Collateral. U.S. Euro Collateral Agent shall incur no liability to any U.S. Euro Secured Party as a result of any sale of any U.S. Euro Collateral at any private sale.
(f) (i) U.S. Euro Collateral Agent may resign at any time by giving at least five (5) days’ notice thereof to the U.S. Euro Secured Parties (such resignation to take effect as hereinafter provided) and U.S. Euro Collateral Agent may be removed as U.S. Euro Collateral Agent at any time by Requisite Obligees. In the event of such resignation or removal of U.S. Euro Collateral Agent, Requisite Obligees shall thereupon have the right to appoint a successor U.S. Euro Collateral Agent. If no successor U.S. Euro Collateral Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) days after the notice of the intent of U.S. Euro Collateral Agent to resign, then the retiring U.S. Euro Collateral Agent may, on behalf of the other U.S. Euro Secured Parties, appoint a successor U.S. Euro Collateral Agent. Any successor U.S. Euro Collateral Agent appointed pursuant to this clause (f)(i) shall be a commercial bank organized under the laws of a member state of the United States of America or any state thereof European Union and having a combined capital and surplus of at least $€500,000,000.
(ii) Upon the acceptance of any appointment as Euro Collateral Agent hereunder by a successor Euro Collateral Agent, such successor Euro Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Euro Collateral Agent, and the retiring or removed Euro Collateral Agent shall thereupon be discharged from its duties and obligations hereunder and under the Global Participation Agreement and the Euro Security Documents. After any retiring or removed Euro Collateral Agent’s resignation or removal hereunder as Euro Collateral Agent, the provisions of this Section 7 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 Euro Collateral Agent.
(iii) In no event shall Euro Collateral Agent or any Euro Secured Party be liable or responsible for any funds or investments of funds held by any Euro Pledgor or any affiliates thereof.
(g) Each of the Euro Secured Parties understands and acknowledges that Euro Collateral Agent and its Affiliates may also hold indebtedness of Crown Holdings or any of its subsidiaries, be an agent under any of the Financing Documents and act in other financial advisory or underwriting capacities on behalf of Crown Holdings or any of its subsidiaries, and waives any actual or potential conflict of interest resulting therefrom.
Appears in 1 contract
Samples: Intercreditor and Collateral Agency Agreement (Crown Holdings Inc)
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party acknowledges that U.S. Collateral Agent shall not be the trustee of any U.S. Secured Party. U.S. Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement or Agreement, the U.S. Security Subsidiary Guaranty and the Collateral Documents, and U.S. Collateral Agent shall not not, by reason of this Agreement Agreement, the Subsidiary Guaranty or any of the U.S. Security Documents Collateral Documents, be a trustee for any U.S. Party or Secured Party or have any other fiduciary obligation to any U.S. Party or Secured Party (including without limitation any obligation under the Trust Indenture Act of 1939, as amended). U.S. Collateral Agent shall not be responsible to any U.S. Party or Secured Party for any recitals, statements, representations or warranties contained in this Agreement, any Credit Agreement or any Financing other Loan Document, any Lender Interest Rate Agreement, the Subsidiary Guaranty or any Collateral Document (collectively, the "FINANCING AGREEMENTS") or in any certificate or other document or instrument referred to or provided for in, or received by any of them under, any of the Financing DocumentsAgreements, or for the valuegenuineness, validity, enforceability, effectiveness, genuineness, enforceability sufficiency or sufficiency value of any of the Financing Documents Agreements or any other document or instrument referred to or provided for therein therein, or any Lien under for the U.S. Security Documents or the validity, perfection or priority of any such Lien under any of the Collateral Documents, or for any failure by any other party Loan Party to perform any of its respective obligations under any of the Financing DocumentsAgreements. U.S. Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither U.S. Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder under or in connection herewithwith any Financing Agreement, except for actions that are finally judicially determined to have resulted from its or their own gross negligence or willful misconduct.
(b) U.S. Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telex, telecopy, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person or persons, and upon advice and statements of legal counsel (including counsel to the Obligors or any of their subsidiaries), independent accountants and other experts selected by U.S. Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting upon. Without limiting any rights of U.S. Collateral Agent hereunder, U.S. Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligees, and such instructions of Requisite Obligees, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Parties.
(c) Each of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco and each U.S. Pledgor (collectively, the “Indemnifying Parties”) agrees, jointly and severally, to indemnify U.S. Collateral Agent for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against U.S. Collateral Agent in any way relating to or arising out of any of this Agreement, the U.S. Security Documents, the Financing Documents or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof; provided, however, that no such Indemnifying Party shall be liable for any of the foregoing to the extent they are finally judicially determined to have resulted from the gross negligence or willful misconduct of U.S. Collateral Agent.
(d) Except for action expressly required of U.S. Collateral Agent hereunder, U.S. Collateral Agent shall, notwithstanding anything to the contrary in Section 7(c) hereof, in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its satisfaction by the U.S. Secured Parties (or the lenders or holders represented thereby) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.
(e) Except as expressly provided herein and in the U.S. Security Documents, U.S. Collateral Agent shall have no duty to take any affirmative steps with respect to the collection of amounts payable in respect of the U.S. Collateral. U.S. Collateral Agent shall incur no liability to any U.S. Secured Party as a result of any sale of any U.S. Collateral at any private sale.
(f) (i) U.S. Collateral Agent may resign at any time by giving at least five (5) days’ notice thereof to the U.S. Secured Parties (such resignation to take effect as hereinafter provided) and U.S. Collateral Agent may be removed as U.S. Collateral Agent at any time by Requisite Obligees. In the event of such resignation or removal of U.S. Collateral Agent, Requisite Obligees shall thereupon have the right to appoint a successor U.S. Collateral Agent. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) days after the notice of the intent of U.S. Collateral Agent to resign, then the retiring U.S. Collateral Agent may, on behalf of the other U.S. Secured Parties, appoint a successor U.S. Collateral Agent. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(i) shall be a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000.
Appears in 1 contract
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party acknowledges that U.S. Collateral Agent shall not be the trustee of any U.S. Secured Party. U.S. The Collateral Agent shall have no duties or responsibilities as a trustee except those expressly set forth in this Agreement or and the U.S. Security Documents, and U.S. Collateral Agent shall not by reason of this Agreement or the U.S. Security Documents be a trustee for any U.S. Secured Party or have any other fiduciary obligation to any U.S. Secured Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. The Collateral Agent shall not be responsible to any U.S. Secured Benefited Party for any recitals, statements, representations or warranties contained in this Agreement or any Financing Document Agreement or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing DocumentsAgreement, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents Agreement or any other document referred to or provided for therein or any Lien under any of the U.S. Security Documents or the perfection or priority of any such Lien or for any failure by any Obligor, any Benefited Party or any other party Person to perform any of its respective obligations under any of Financing Agreement. Without limiting the Financing Documents. U.S. foregoing, the Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsiblerequired to take any action under any Security Document, except as including, without limitation, any action to money perfect any security interests granted in the Collateral pursuant to the Security Documents or securities received to administer any Collateral unless instructed to do so by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable careMajority Benefited Parties. Neither U.S. the Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from its or their own the gross negligence or willful misconductmisconduct of any such Person.
(b) U.S. The Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telex, telephone or telecopy, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person Person or personsPersons, and upon advice and statements of independent legal counsel (including counsel to the Obligors or any of their subsidiaries)counsel, independent accountants and other experts selected by U.S. the Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting uponAgent. Without limiting As to any rights of U.S. Collateral Agent hereundermatters not expressly provided for by this Agreement, U.S. the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligeesthe Majority Benefited Parties, and such instructions of Requisite Obligeesthe Majority Benefited Parties, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Parties, Directing Parties and Non-Directing Parties.
(c) Each of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco and each U.S. Pledgor (collectively, The Benefited Parties agree that they will indemnify the “Indemnifying Parties”) agrees, jointly and severally, to indemnify U.S. Collateral Agent in its capacity as the Collateral Agent, ratably in accordance with the amount of the Benefited Obligations held by such Benefited Parties to the extent neither reimbursed by Obligors under the Security Documents nor reimbursed out of any Proceeds pursuant to clause FIRST of Section 4(a) hereof, for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and or nature whatsoever which that may be imposed on, incurred by or asserted against U.S. the Collateral Agent in any way relating to or arising out of this Agreement or any of this Agreement, the U.S. Security Documents, the Financing Documents or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof, including fees and expenses of counsel (including the allocated cost of internal counsel); provided, however, that no such Indemnifying Benefited Party shall be liable for any of the foregoing such payment to the extent they are finally judicially determined the obligation to make such payment is found in a final judgment by a court of competent jurisdiction to have resulted arisen solely from the Collateral Agent's gross negligence or willful misconduct of U.S. Collateral Agentmisconduct.
(d) Except for action expressly required of U.S. the Collateral Agent hereunder, U.S. the Collateral Agent shall, notwithstanding anything to the contrary in Section 7(c8(c) hereof, in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its reasonable satisfaction by the U.S. Secured Parties (or the lenders or holders represented thereby) against any and all liability and expense which that may be incurred by it by reason of taking or continuing to take any such action.
(e) The Collateral Agent may deem and treat the payee of any promissory note or other evidence of indebtedness or obligations relating to any Benefited Obligation as the owner thereof for all purposes hereof unless and until a written notice of the assignment or transfer thereof, signed by such payee and in form reasonably satisfactory to the Collateral Agent, shall have been delivered to the Collateral Agent. Any request, authority or consent of any Person who at the time of making such request or giving such authority or consent is the holder of any such note or other evidence of indebtedness or obligations shall be conclusive and binding on any subsequent holder, transferee or assignee of such note or other evidence of indebtedness or obligations and of any note or notes or other evidences of indebtedness or obligations issued in exchange therefor.
(f) Except as expressly provided herein and in the U.S. Security Documents, U.S. the Collateral Agent shall have no duty to take any affirmative steps with respect to the administration or collection of amounts payable in respect of the U.S. Security Documents or the Collateral. U.S. The Collateral Agent shall incur no liability (except to any U.S. Secured Party the extent the actions or omissions of the Collateral Agent in connection therewith constitute gross negligence or willful misconduct) as a result of any sale of any U.S. Collateral Collateral, whether at any public or private sale.
(fg) (i) U.S. The Collateral Agent may resign at any time by giving at least five (5) 30 days’ ' notice thereof to the U.S. Secured Parties (such resignation to take effect upon the acceptance by a successor Collateral Agent of any appointment as hereinafter providedthe Collateral Agent hereunder) and U.S. the Collateral Agent may be removed as U.S. the Collateral Agent at any time by Requisite Obligeesthe Majority Benefited Parties; provided that if an Event of Default shall exist such removal may be effected by either (1) the Required Lenders or (2) the Required Noteholders. In the event of any such resignation or removal of U.S. the Collateral Agent, Requisite Obligees the Majority Benefited Parties shall thereupon have the right to appoint a successor U.S. Collateral AgentAgent which is not a Benefited Party. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees the Majority Benefited Parties and shall have accepted such appointment within thirty (30) 30 days after the notice of the intent of U.S. the Collateral Agent to resignresign or the removal of the Collateral Agent, then the retiring U.S. Collateral Agent may, on behalf of the other U.S. Secured Parties, appoint a successor U.S. Collateral Agent. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(i) shall be a commercial bank or other financial institution organized under the laws of the United States of America or any state thereof and having (1) a combined capital and surplus of at least $500,000,000250,000,000 and (2) a rating upon its long-term senior unsecured indebtedness of "A-2" or better by Moodx'x Xxxestors Service, Inc. or "A" or better by Standard & Poor's Corporation. Upon the acceptance by a successor Collateral Agent of any appointment as the Collateral Agent hereunder, 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, and the retiring or removed Collateral Agent shall thereupon be discharged from its duties and obligations hereunder. After any retiring or removed Collateral Agent's resignation or removal hereunder as the Collateral Agent, the provisions of this Section 8 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 the Collateral Agent.
(h) In no event shall the Collateral Agent or any Party be liable or responsible for any funds or investments of funds held by the Obligors or any of their Affiliates.
(i) With respect to its pro rata share of the Benefited Obligations, Bank of America, N.A. (or its successor as the Collateral Agent), in its capacity as Lender shall have and may exercise the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent set forth herein for any other Benefited Party, all as if Bank of America, N.A. were not appointed as the Collateral Agent pursuant hereto. The terms "Benefited Parties," "Lenders" or "Required Lenders" or any similar terms shall, unless the context clearly otherwise indicates, include the Collateral Agent or any Affiliate (or its successor as the Collateral Agent) in its capacity as Lender and in its individual capacity as a Benefited Party, Lender or one of the Required Lenders. Bank of America, N.A. and its Affiliates may lend money to, and generally engage in any kind of business with, any Obligor as if Bank of America, N.A. were not acting as the Collateral Agent pursuant hereto and without any duty to account therefor to the Benefited Parties. Without limiting the foregoing, each Benefited Party acknowledges that (i) Bank of America, N.A. is both a Lender and an agent under the Credit Agreement and a collateral agent under the Bank Security Documents, (ii) Bank of America, N.A. may continue to engage in any credit decisions with respect to the Credit Agreement and any Hedging Transaction under which it is a Lender without any duty to account therefor to the Benefited Parties by reason of its appointment as the Collateral Agent and (iii) Bank of America, N.A. is acting as a collateral agent under the Noteholders' Security Documents.
Appears in 1 contract
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party acknowledges that U.S. Collateral Agent shall not be the trustee of any U.S. Secured Party. U.S. The Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement or and the U.S. Security Documents, and U.S. . The Collateral Agent shall not by reason of this Agreement Agreement, the Security Documents, the U.S. Guaranty or the U.S. Security Documents Parent Guaranty be a trustee for any U.S. Secured Benefited Party or have any other fiduciary obligation to any U.S. Secured Benefited Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. The Collateral Agent shall not be responsible to any U.S. Secured Benefited Party for any recitals, statements, representations or warranties contained in this Agreement or any Financing Document Agreement or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing DocumentsAgreement, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents Agreement or any other document referred to or provided for therein or any Lien under any of the Security Documents or the U.S. Security Documents Guaranty or the Parent Guaranty or the perfection or priority of any such Lien or for any failure by the Company, any other party Grantor, any Benefited Party or any other Person to perform any of its respective obligations under any of Financing Agreement. Without limiting the Financing foregoing, the Collateral Agent shall not be required to take any action under any Security Document, the U.S. Guaranty or the Parent Guaranty, including, without limitation, any action to perfect any security interest granted in the Collateral pursuant to the Security Documents, or to administer any Collateral unless instructed to do so by the Majority Benefited Parties. U.S. The Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither U.S. the Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from its or their own the gross negligence or willful misconductmisconduct of such Person.
(b) U.S. The Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telephone, telex, telecopyfacsimile, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person Person or personsPersons, and upon advice and statements of independent legal counsel (including counsel to the Obligors or any of their subsidiaries)counsel, independent accountants and other experts selected by U.S. the Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting uponAgent. Without limiting As to any rights of U.S. Collateral Agent hereundermatters not expressly provided for by this Agreement, U.S. the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligeesthe Majority Benefited Parties, and such instructions of Requisite Obligeesthe Majority Benefited Parties, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Benefited Parties.
(c) Each The Benefited Parties agree that they will indemnify the Collateral Agent, in its capacity as the Collateral Agent, ratably in accordance with the amount of Crown Holdingsthe Benefited Obligations held by such Benefited Parties at the time such claim arises, CCSC, Crown International, Crown Usco, Crown Euroco and each U.S. Pledgor (collectivelyto the extent the Collateral Agent is not reimbursed by the Grantors under the Security Documents, the “Indemnifying Parties”) agreesU.S. Guaranty or the Parent Guaranty or reimbursed out of any Proceeds pursuant to clause FIRST of subsection 4(a), jointly and severally, to indemnify U.S. Collateral Agent --------------- for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and or nature whatsoever which that may be imposed on, incurred by or asserted against U.S. the Collateral Agent in any way relating to or arising out of this Agreement or any of this Agreement, the Security Documents or the U.S. Security Documents, the Financing Documents or any other documents contemplated by or referred to therein Guaranty or the transactions contemplated thereby Parent Guaranty or the enforcement of any of the terms of any thereof, including fees and expenses of counsel (including the allocated cost of internal counsel); provided, however, provided that no -------- such Indemnifying Benefited Party shall be liable for any of the foregoing such payment to the extent they are finally judicially determined the obligation to make such payment is found in a final judgment by a court of competent jurisdiction to have resulted arisen solely from the Collateral Agent's gross negligence or willful misconduct misconduct. The obligations of U.S. Collateral Agentthe Benefited Parties under this subsection 8(c) shall survive the payment in full of the Benefited --------------- Obligations and the termination of this Agreement; provided that no Benefited -------- Party shall be liable for any such payment to the extent that the action or inaction giving rise to the obligation to make such payment arose more than one year after the Benefited Obligations of such Benefited Party have been paid in full.
(d) Except for action expressly required of U.S. the Collateral Agent hereunder, U.S. the Collateral Agent shall, notwithstanding anything to the contrary in Section 7(c) hereofsubsection 8(c), in all cases be --------------- fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its reasonable satisfaction by the U.S. Secured Benefited Parties (or the lenders or holders represented thereby) against any and all liability and expense which that may be incurred by it by reason of taking or continuing to take any such action.
(e) The Collateral Agent may deem and treat the payee of any promissory note or other evidence of indebtedness or obligation relating to any Benefited Obligation as the owner thereof for all purposes hereof unless and until a written notice of the assignment or transfer thereof, signed by such payee and in form reasonably satisfactory to the Collateral Agent, shall have been filed with the Collateral Agent. Any request, authority or consent of any Person who at the time of making such request or giving such authority or consent is the holder of any such note or other evidence of indebtedness or obligation shall be conclusive and binding on any subsequent holder, transferee or assignee of such note or other evidence of indebtedness or obligation and of any note or notes or other evidences of indebtedness or obligation issued in exchange therefor.
(f) Except as expressly provided herein herein, in the Security Documents, in the U.S. Guaranty and in the U.S. Security DocumentsParent Guaranty, U.S. the Collateral Agent shall have no duty to take any affirmative steps with respect to the administration or collection of amounts payable in respect of the Security Documents or the U.S. Guaranty or the Parent Guaranty or the Collateral. U.S. The Collateral Agent shall incur no liability (except to any U.S. Secured Party the extent the actions or omissions of the Collateral Agent in connection therewith constitute gross negligence or willful misconduct) as a result of any sale of any U.S. Collateral Collateral, whether at any public or private sale.
(fg) (i) U.S. The Collateral Agent may resign at any time by giving at least five (5) 30 days’ ' notice thereof to the Company, the U.S. Secured Parties Agent, the Banks, the Term Agent, the Term Lenders and, if applicable, the Permitted Creditors (such resignation to take effect upon the acceptance by a successor Collateral Agent of any appointment as hereinafter providedthe Collateral Agent hereunder) and U.S. the Collateral Agent may be removed as U.S. the Collateral Agent at any time by Requisite Obligeesany of (1) the Required Banks, (2) the Required Term Lenders or (3) Permitted Creditors holding (or representing) more than 51% of the outstanding principal amount outstanding under any Permitted Senior Secured Debt Agreement or group of related Permitted Senior Secured Debt Agreements. In the event of any such resignation or removal of U.S. the Collateral Agent, Requisite Obligees the Majority Benefited Parties shall thereupon have the right (subject, so long as no Event of Default exists, to the consent of the Company, which shall not be unreasonably withheld or delayed) to appoint a successor U.S. Collateral Agent. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees the Majority Benefited Parties and shall have accepted such appointment within thirty (30) 30 days after the notice of the intent of U.S. the Collateral Agent to resignresign or the removal of the Collateral Agent, then the retiring U.S. Collateral Agent may, on behalf of the other U.S. Secured Benefited Parties, appoint a successor U.S. Collateral Agent. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(i) shall be a commercial bank or other financial institution organized under the laws of the United States of America or any state thereof and having (1) a combined capital and surplus of at least $500,000,000500,000,000 and (2) a rating upon its long-term senior unsecured indebtedness of "A-2" or better by Xxxxx'x Investors Service, Inc. or "A" or better by Standard & Poor's Ratings Group. Upon the acceptance by a successor Collateral Agent of any appointment as the Collateral Agent hereunder, 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, and the retiring or removed Collateral Agent shall thereupon be discharged from its duties and obligations hereunder. If no successor Collateral Agent has accepted appointment as Collateral Agent hereunder by the date which is 30 days after a retiring Collateral Agent's notice of resignation, such retiring Collateral Agent's notice of resignation shall nevertheless become effective and the Benefited Parties shall perform all of the duties of the Collateral Agent until such time, if any, as the Majority Benefited Parties appoint a successor Collateral Agent. After any retiring Collateral Agent's resignation or removal hereunder, the provisions of Sections 3 and 8 shall ---------- - continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was Collateral Agent.
(h) In no event shall the Collateral Agent or any other Benefited Party be liable or responsible for any funds or investments of funds held by the Company or any of its Affiliates.
(i) With respect to its share of the Benefited Obligations, BofA and its Affiliates shall have and may exercise the same rights and powers hereunder as, and shall be subject to the same obligations and liabilities as and to the extent set forth herein for, any other Benefited Party, all as if BofA were not the Collateral Agent. The terms "Benefited Parties", "Banks", "Required Banks", "Term Lenders", "Required Term Lenders" (and, if applicable, "Permitted Creditor") or any similar terms shall, unless the context clearly otherwise indicates, include BofA or any Affiliate of BofA in its individual capacity as a Benefited Party, Bank, one of the Required Banks, Term Lender or one of the Required Term Lenders (or, if applicable, one of the Permitted Creditors), as applicable. BofA and its Affiliates may lend money to, and generally engage in any kind of business with, any Grantor as if BofA were not acting as the Collateral Agent and without any duty to account therefor to the Benefited Parties. Without limiting the foregoing, each Benefited Party acknowledges that (i) BofA is a Bank and the U.S. Agent under the Existing Credit Agreement, the Term Agent and a Term Lender under the Existing Term Loan Agreement and the Collateral Agent under the Security Documents and the U.S. Guaranty and the Parent Guaranty and (ii) BofA and its Affiliates may continue to engage in any credit decision with respect to the Credit Agreement, the Term Loan Agreement or any Hedging Transaction under which BofA or an Affiliate thereof is a counterparty, in each case without any duty to account therefor to the other Benefited Parties by reason of its appointment as the Collateral Agent.
Appears in 1 contract
Samples: Credit Agreement (United Rentals North America Inc)
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party acknowledges that the U.S. Collateral Agent shall not be the trustee of any U.S. Secured Party. The U.S. Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement or Agreement, the U.S. Security Documents, and the U.S. Collateral Agent shall not by reason of this Agreement or the U.S. Security Documents be a trustee for any U.S. Secured Party or have any other fiduciary obligation to any U.S. Secured Party (including any obligation under the Trust Indenture Act of 1939, as amended). The U.S. Collateral Agent shall not be responsible to any U.S. Secured Party for any recitals, statements, representations or warranties contained in this Agreement or any Financing Document or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing Documents, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents or any other document referred to or provided for therein or any Lien under the U.S. Security Documents or the perfection or priority of any such Lien or for any failure by any other party to perform any of its respective obligations under any of the Financing Documents. The U.S. Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither the U.S. Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from its or their own gross negligence or willful misconduct.
(b) The U.S. Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telex, telecopy, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person or persons, and upon advice and statements of legal counsel (including counsel to the Obligors or any of their subsidiaries), independent accountants and other experts selected by the U.S. Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting upon. Without limiting any rights of the U.S. Collateral Agent hereunder, the U.S. Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligees, and such instructions of Requisite Obligees, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Parties.
(c) Each of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco and each U.S. Pledgor (collectively, the “Indemnifying Parties”) agrees, jointly and severally, to indemnify the U.S. Collateral Agent for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the U.S. Collateral Agent in any way relating to or arising out of any of this Agreement, the U.S. Security Documents, the Financing Documents or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof; provided, however, that no such Indemnifying Party shall be liable for any of the foregoing to the extent they are finally judicially determined to have resulted from the gross negligence or willful misconduct of the U.S. Collateral Agent.
(d) Except for action expressly required of the U.S. Collateral Agent hereunder, the U.S. Collateral Agent shall, notwithstanding anything to the contrary in Section 7(c9(c) hereof, in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its satisfaction by the U.S. Secured Parties (or the lenders or holders represented thereby) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.
(e) Except as expressly provided herein and in the U.S. Security Documents, the U.S. Collateral Agent shall have no duty to take any affirmative steps with respect to the collection of amounts payable in respect of the U.S. Collateral. The U.S. Collateral Agent shall incur no liability to any U.S. Secured Party as a result of any sale of any U.S. Collateral at any private sale.
(f) (i) The U.S. Collateral Agent may resign at any time by giving at least five (5) 5 days’ notice thereof to the U.S. Secured Parties (such resignation to take effect as hereinafter provided) and the U.S. Collateral Agent may be removed as U.S. Collateral Agent at any time by Requisite Obligees. In the event of such resignation or removal of the U.S. Collateral Agent, Requisite Obligees shall thereupon have the right to appoint a successor U.S. Collateral Agent. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) 30 days after the notice of the intent of the U.S. Collateral Agent to resign, then the retiring U.S. Collateral Agent may, on behalf of the other U.S. Secured Parties, appoint a successor U.S. Collateral Agent. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(i) shall be a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000.
(ii) Upon the acceptance of any appointment as U.S. Collateral Agent hereunder by a successor U.S. Collateral Agent, such successor U.S. Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed U.S. Collateral Agent, and the retiring or removed U.S. Collateral Agent shall thereupon be discharged from its duties and obligations hereunder and under the Global Participation Agreement and the U.S. Security Documents. After any retiring or removed U.S. Collateral Agent’s resignation or removal hereunder as U.S. Collateral Agent, the provisions of this Section 9 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 the U.S. Collateral Agent.
(iii) In no event shall the U.S. Collateral Agent or any U.S. Secured Party be liable or responsible for any funds or investments of funds held by any U.S. Pledgor or any affiliates thereof.
(g) Each of the U.S. Secured Parties understands and acknowledges that the U.S. Collateral Agent and its Affiliates may also hold indebtedness of Crown Holdings or any of its subsidiaries, be an agent under any of the Financing Documents and act in other financial advisory or underwriting capacities on behalf of Crown Holdings or any of its subsidiaries, and waives any actual or potential conflict of interest resulting therefrom.
Appears in 1 contract
Samples: Intercreditor and Collateral Agency Agreement (Crown Holdings Inc)
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party acknowledges that U.S. Collateral Agent shall not be the trustee of any U.S. Secured Party. U.S. A. The Collateral Agent shall have no duties or responsibilities to the Secured Parties except those expressly set forth in this Agreement or and the U.S. Security Documents, Collateral Documents and U.S. the Collateral Agent shall not by reason of this Agreement or the U.S. Security Collateral Documents be a trustee for any U.S. Secured Party or have any other fiduciary obligation to any U.S. Secured Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. The Collateral Agent shall not be responsible to any U.S. Secured Party for any recitals, statements, representations or warranties contained in this Agreement, the Credit Agreement or the Senior Secured Credit Agreement or any related loan documents (collectively, the "Financing Document Agreements") or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing DocumentsAgreements, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents Agreements or any other document referred to or provided for therein or any Lien lien under the U.S. Security Collateral Documents or the perfection or priority of any such Lien lien or the value or condition of the Collateral or the title of the Borrower or its Subsidiaries to the Collateral or for any failure by any other party Borrower or its Subsidiaries to perform any of its respective obligations under any of the Financing DocumentsAgreements. U.S. The Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, responsible for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither U.S. the Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from the extent of its or their own gross negligence or willful misconduct.
(b) U.S. B. The Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telex, telecopy, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person Person or personsPersons, and upon advice and statements of legal counsel (including counsel to the Obligors Borrower or any Subsidiary of their subsidiariesthe Borrower), independent accountants and other experts selected by U.S. Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting upon. Without limiting any rights of U.S. Collateral Agent hereunder, U.S. Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligees, and such instructions of Requisite Obligees, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Parties.
(c) Each of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco and each U.S. Pledgor (collectively, the “Indemnifying Parties”) agrees, jointly and severally, to indemnify U.S. Collateral Agent for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against U.S. Collateral Agent in any way relating to or arising out of any of this Agreement, the U.S. Security Documents, the Financing Documents or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof; provided, however, that no such Indemnifying Party shall be liable for any of the foregoing to the extent they are finally judicially determined to have resulted from the gross negligence or willful misconduct of U.S. Collateral Agent.
(d) Except for action expressly required of U.S. Collateral Agent hereunder, U.S. Collateral Agent shall, notwithstanding C. Notwithstanding anything to the contrary contained herein, the Collateral Agent shall not be required to take any action that is in Section 7(c) hereofits opinion contrary to law or to the terms of this Agreement or any or all of the Collateral Documents or which would in its opinion subject it or any of its officers, in employees or directors to liability, and the Collateral Agent shall not be required to take any action under this Agreement or any or all cases be fully justified in failing or refusing to act hereunder or under of the U.S. Security Collateral Documents unless it and until the Collateral Agent shall be further indemnified to its satisfaction by the U.S. Secured Parties (or the lenders or holders represented thereby) against any and all loss, cost, expense or liability and expense which may be incurred by it by reason of taking or continuing to take any such actionin connection therewith.
(e) Except as expressly provided herein and in the U.S. Security Documents, U.S. Collateral Agent shall have no duty to take any affirmative steps with respect to the collection of amounts payable in respect of the U.S. Collateral. U.S. Collateral Agent shall incur no liability to any U.S. Secured Party as a result of any sale of any U.S. Collateral at any private sale.
(f) (i) U.S. The Collateral Agent may resign at any time by giving at least five (5) days’ 30 days notice thereof to the U.S. Secured Parties (such resignation to take effect as hereinafter provided) and U.S. Collateral Agent may be removed as U.S. Collateral Agent at any time by Requisite Obligees). In the event of any such resignation or removal of U.S. the Collateral Agent, Requisite Obligees the Revolving Lenders and the Bridge Lenders shall thereupon have the right to appoint a successor U.S. Collateral Agent. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) 30 days after the notice of the intent of U.S. the Collateral Agent to resign, then the retiring U.S. Collateral Agent may, on behalf of the other U.S. Secured Parties, appoint a successor U.S. Collateral Agent. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(ii) shall be a bank party to the Credit Agreement or the Senior Secured Credit Agreement or a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000250,000,000.
(ii) Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, such successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Collateral Agent, and the retiring or removed Collateral Agent shall thereupon be discharged from its duties and obligations hereunder. After any retiring or removed Collateral Agent's resignation or removal hereunder as Collateral Agent, 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 the Collateral Agent.
Appears in 1 contract
Samples: Credit Agreement (FWT Inc)
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party Creditor acknowledges that U.S. the Collateral Agent shall not be the trustee of any U.S. Secured PartyCreditor. U.S. The Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement or Agreement, the U.S. Security Documents, and U.S. the Collateral Agent shall not by reason of this Agreement or the U.S. Security Documents be a trustee for any U.S. Secured Party Creditor or have any other fiduciary obligation to any U.S. Secured Party Creditor (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. The Collateral Agent shall not be responsible to any U.S. Secured Party Creditor for any recitals, statements, representations or warranties contained in this Agreement or any Financing Document or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing Documents, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents or any other document referred to or provided for therein or any Lien under the U.S. Security Documents or the perfection or priority of any such Lien or for any failure by any other party to perform any of its respective obligations under any of the Financing Documents. U.S. The Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither U.S. the Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from its or their own gross negligence or willful misconduct.
(b) U.S. The Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telex, telecopy, telegram or cable) believed by it (acting reasonably) to be genuine and correct and to have been signed or sent by or on behalf of the proper person Person or personsPersons, and upon advice and statements of legal counsel (including counsel to the Obligors or any of their subsidiaries), independent accountants and other experts selected by U.S. the Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting upon. Without limiting any rights of U.S. the Collateral Agent hereunder, U.S. the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligees, and such instructions of Requisite Obligees, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured PartiesCreditors.
(c) Each of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco HAM and each U.S. Pledgor (collectively, the “"Indemnifying Parties”") agrees, jointly and severally, to indemnify U.S. the Collateral Agent for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against U.S. the Collateral Agent in any way relating to or arising out of any of this Agreement, the U.S. Security Documents, the Financing Documents or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof; provided, however, that no such Indemnifying Party shall be liable for any of the foregoing to the extent they are finally judicially determined to have resulted from the gross negligence or willful misconduct of U.S. the Collateral Agent.
(d) Except for action expressly required of U.S. the Collateral Agent hereunder, U.S. the Collateral Agent shall, notwithstanding anything to the contrary in Section 7(c8(c) hereof, in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its satisfaction by the U.S. Secured Parties Creditors (or the lenders or holders represented thereby) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.
(e) Except as expressly provided herein and in the U.S. Security Documents, U.S. the Collateral Agent shall have no duty to take any affirmative steps with respect to the collection of amounts payable in respect of the U.S. Collateral. U.S. The Collateral Agent shall incur no liability to any U.S. Secured Party Creditor as a result of any sale of any U.S. Collateral at any private sale.
(f) (i) U.S. The Collateral Agent may resign at any time by giving at least five (5) 5 days’ ' notice thereof to the U.S. Secured Parties Creditors (such resignation to take effect as hereinafter provided) and U.S. the Collateral Agent may be removed as U.S. Collateral Agent at any time by Requisite Obligees. In the event of such resignation or removal of U.S. the Collateral Agent, Requisite Obligees shall thereupon have the right to appoint a successor U.S. Collateral Agent. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) 30 days after the notice of the intent of U.S. the Collateral Agent to resign, then the retiring U.S. Collateral Agent may, on behalf of the other U.S. Secured PartiesCreditors, appoint a successor U.S. Collateral Agent. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(i) shall be a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000.
(ii) Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, such successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Collateral Agent, and the retiring or removed Collateral Agent shall thereupon be discharged from its duties and obligations hereunder and under the Security Documents. After any retiring or removed Collateral Agent's resignation or removal hereunder as Collateral Agent, the provisions of this Section 8 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 the Collateral Agent.
(iii) In no event shall the Collateral Agent or any Secured Creditor be liable or responsible for any funds or investments of funds held by any Pledgor or any affiliates thereof.
(g) Each of the Secured Creditors understands and acknowledges that the Collateral Agent and its Affiliates may also hold indebtedness of HAM or any of its subsidiaries and affiliates, be an agent under any of the Financing Documents and act in other financial advisory or underwriting capacities on behalf of HAM or any of its subsidiaries and affiliates, and waives any actual or potential conflict of interest resulting therefrom.
Appears in 1 contract
Samples: Intercreditor and Collateral Agency Agreement (Huntsman Advanced Materials (UK) LTD)
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party acknowledges that U.S. Collateral Agent shall not be the trustee of any U.S. Secured Party. U.S. The Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement or and the U.S. Security Collateral Documents, and U.S. . The Collateral Agent shall not by reason of this Agreement Agreement, any Guaranty or the U.S. Security Documents any Collateral Document be a trustee for any U.S. Secured Benefited Party or have any other fiduciary obligation to any U.S. Secured Benefited Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. The Collateral Agent shall not be responsible to any U.S. Secured Benefited Party for any recitals, statements, representations or warranties contained in this Agreement or any Financing Document Agreement or in any certificate or other document referred to or provided for in, or received by any of them under, any of Financing Agreement (other than statements, representations and warranties made by the Financing DocumentsCollateral Agent), or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents Agreement or any other document referred to or provided for therein or any Lien under the U.S. Security Documents any Collateral Document or the perfection or priority of any such Lien or for any failure by the Company, any Guarantor, any Benefited Party or any other party Person to perform any of its respective obligations under any Financing Agreement. Without limiting the foregoing, the Collateral Agent shall not be required to take any action under any Guaranty or any Collateral Document, including any action to perfect any security interest granted in the Collateral pursuant to any Collateral Document, or to administer any Collateral unless instructed to do so by the Required Benefited Parties; provided that, subject to subsection 2(d), any Benefited Party may instruct the Collateral Agent to take actions necessary to preserve, protect or continue any existing security interest (including, without limitation, an instruction to file a Uniform Commercial Code financing statement) without the need to obtain the consent of the Financing DocumentsRequired Benefited Parties. U.S. The Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither U.S. the Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder hereunder, under any Guaranty or Collateral Documents or in connection herewithwith any of the foregoing, except for actions that are finally judicially determined to have resulted from its or their own the gross negligence or willful misconductmisconduct of such Person.
(b) U.S. The Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telextelephone, telecopyfacsimile, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person Person or personsPersons, and upon advice and statements of independent legal counsel (including counsel to the Obligors or any of their subsidiaries)counsel, independent accountants and other experts selected by U.S. the Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting uponAgent. Without limiting As to any rights of U.S. Collateral Agent hereundermatters not expressly provided for by this Agreement, U.S. the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligeesthe Required Benefited Parties, and such instructions of Requisite Obligeesthe Required Benefited Parties, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Benefited Parties.
(c) Each The Benefited Parties agree severally (but not jointly) that they will indemnify the Collateral Agent, in its capacity as the Collateral Agent, ratably in accordance with the amount of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco and the Benefited Obligations held by each U.S. Pledgor (collectively, of the “Indemnifying Parties”) agrees, jointly and severallyBenefited Parties at the time any item described below arises, to indemnify U.S. the extent the Collateral Agent is not reimbursed by the Company or the Guarantors under the Financing Agreements or reimbursed out of any Proceeds pursuant to clause FIRST of subsection 4(a), for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and or nature whatsoever which that may be imposed on, incurred by or asserted against U.S. the Collateral Agent in any way relating to or arising out of any of this Agreement, the U.S. Security Documents, the Financing Documents any Guaranty or any other documents contemplated by or referred to therein or the transactions contemplated thereby Collateral Document or the enforcement of any of the terms hereof or thereof, including reasonable fees and expenses of any thereofcounsel (including the allocated cost of internal counsel); provided, however, provided that no such Indemnifying Benefited Party shall be liable for any of the foregoing such payment to the extent they are finally judicially determined the obligation to make such payment is found in a final judgment by a court of competent jurisdiction to have resulted arisen from the Collateral Agent’s gross negligence or willful misconduct misconduct. The obligations of U.S. Collateral Agentthe Benefited Parties under this subsection 7(c) shall survive the payment in full of the Benefited Obligations and the termination of this Agreement.
(d) Except for action expressly required of U.S. the Collateral Agent hereunder, U.S. the Collateral Agent shall, notwithstanding anything to the contrary in Section subsection 7(c) hereof), in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its reasonable satisfaction by the U.S. Secured Benefited Parties (or the lenders or holders represented thereby) against any and all liability and expense which that may be incurred by it by reason of taking or continuing to take any such action.
(e) The Collateral Agent may deem and treat the payee of any promissory note or other evidence of indebtedness or obligation relating to any Benefited Obligation as the owner thereof for all purposes hereof unless and until a written notice of the assignment or transfer thereof, signed by such payee and in form reasonably satisfactory to the Collateral Agent, shall have been filed with the Collateral Agent. Any request, authority or consent of any Person who at the time of making such request or giving such authority or consent is the holder of any such note or other evidence of indebtedness or obligation shall be conclusive and binding on any subsequent holder, transferee or assignee of such note or other evidence of indebtedness or obligation and of any note or notes or other evidences of indebtedness or obligation issued in exchange therefor.
(f) Except as expressly provided herein and in herein, the U.S. Security Documents, U.S. Collateral Agent shall have no duty to take any affirmative steps with respect to the administration or collection of amounts payable in respect of the U.S. Guaranties, the Collateral Documents or the Collateral. U.S. The Collateral Agent shall incur no liability (except to any U.S. Secured Party the extent the actions or omissions of the Collateral Agent in connection therewith constitute gross negligence or willful misconduct) as a result of any sale of any U.S. Collateral Collateral, whether at any public or private sale.
(f) (i) U.S. The Collateral Agent may resign at any time by giving at least five (5) 45 days’ notice thereof to the U.S. Secured Parties (such resignation to take effect as hereinafter provided) Lenders and U.S. the Noteholders, the Collateral Agent may be removed as U.S. the Collateral Agent at any time, with or without cause, by the Required Benefited Parties and the Collateral Agent may be removed by the Required Noteholders at any time that (A) an Event of Default exists under the Note Agreement or the principal amount of the Notes constitutes more than 50% of the Maximum Principal Obligations and (B) the Collateral Agent has failed to take any action which the Collateral Agent is required to take hereunder after request therefor by Requisite Obligeesthe Required Noteholders or the Collateral Agent has taken any action hereunder which the Collateral Agent is not authorized to take hereunder or which violates the terms hereof. In the event of any such resignation or removal of U.S. the Collateral Agent, Requisite Obligees the Required Benefited Parties shall thereupon have the right to appoint a successor U.S. Collateral Agent. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees the Required Benefited Parties and shall have accepted such appointment within thirty (30) 45 days after the notice of the intent of U.S. the Collateral Agent to resignresign or the removal of the Collateral Agent, then the retiring U.S. resignation or removal shall nonetheless become effective and the Benefited Parties acting collectively shall thereafter have the rights and obligations of the Collateral Agent may, on behalf of hereunder and under the other U.S. Secured Parties, appoint Collateral Documents until a successor U.S. Collateral AgentAgent has been appointed and accepted such appointment. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(i) subsection shall be a commercial bank or other financial institution organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000500,000,000 or shall otherwise be acceptable to the Required Benefited Parties. After any retiring or removed Collateral Agent’s resignation or removal hereunder, the provisions of Section 3 and this Section 7 shall continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was the Collateral Agent.
(ii) Upon the acceptance by a successor Collateral Agent of appointment as the Collateral Agent hereunder, 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, and the retiring or removed Collateral Agent shall thereupon be discharged from its duties and obligations hereunder.
(h) In no event shall the Collateral Agent or any other Benefited Party be liable or responsible for any funds or investments of funds held by the Company, any Guarantor or any of their Affiliates.
(i) With respect to their respective shares of the Benefited Obligations, Bank of America and its Affiliates shall have and may exercise the same rights and powers hereunder as, and shall be subject to the same obligations and liabilities as and to the extent set forth herein for, any other Benefited Party, all as if Bank of America were not the Collateral Agent. The terms “Benefited Parties”, “Required Benefited Parties”, “Lenders”, “Required Lenders” , “Cash Management Bank” or any similar term shall, unless the context clearly otherwise indicates, include Bank of America or any Affiliate of Bank of America in its individual capacity as a Benefited Party, one of the Required Benefited Parties, a Lender, one of the Required Lenders or a Cash Management Bank. Bank of America and its Affiliates may lend money to, and generally engage in any kind of business with, the Company or any of its Affiliates as if Bank of America were not acting as the Collateral Agent and without any duty to account therefor to any other Benefited Party. Without limiting the foregoing, each Benefited Party acknowledges that (i) Bank of America is both a Lender and the Administrative Agent under the Credit Agreement and the Collateral Agent hereunder and under the Collateral Documents and (ii) Bank of America and its Affiliates may continue to engage in any credit decision with respect to the Credit Agreement or any other Financing Agreement without any duty to account therefor to the Benefited Parties by reason of its appointment as the Collateral Agent.
Appears in 1 contract
Samples: Intercreditor and Collateral Agency Agreement (Teletech Holdings Inc)
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party acknowledges that U.S. The Collateral Agent shall not be the trustee may execute any of any U.S. Secured Party. U.S. Collateral Agent shall have no its duties or responsibilities except those expressly set forth in under this Agreement or the U.S. any Security DocumentsDocument by or through agents, employees or attorneys-in-fact and U.S. Collateral Agent shall not by reason be entitled to advice of this Agreement or the U.S. Security Documents be a trustee for any U.S. Secured Party or have any other fiduciary obligation to any U.S. Secured Party counsel (including any obligation under the Trust Indenture Act of 1939, as amended)in-house counsel) concerning all matters pertaining to such duties. U.S. The Collateral Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects with reasonable care.
(b) Neither the Collateral Agent nor any Agent-Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any Security Document or the transactions contemplated hereby (except for its own or their gross negligence or willful misconduct), or (ii) be responsible in any manner to any U.S. Secured Party of the Lenders or Noteholders or Future Debt Holders for any recitalsrecital, statementsstatement, representations representation or warranties warranty made by the Company, any other Grantor or any officer thereof, contained in this Agreement or any Financing Security Document or in any certificate certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Agreement or any of them under, any of Security Document or the Financing Documents, or for the value, validity, effectiveness, genuineness, enforceability enforceability, sufficiency or sufficiency collectibility of any of the Financing Documents this Agreement or any other document referred to or provided for therein Security Document, any Benefited Obligations, or any Lien under securing or intended to secure the U.S. Security Documents Benefited Obligations, or the attachment, perfection or priority of any such Lien Liens securing or intended to secure the Benefited Obligations, or for any failure by any other party of the Company to perform any of its respective obligations under any of the Financing Documents. U.S. Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money hereunder or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable carethereunder. Neither U.S. the Collateral Agent nor any of its directors, officers, employees or agents Agent-Related Person shall be liable under any obligation to any Lender, any Noteholder or responsible for any action taken Future Debt Holder to ascertain or omitted to be taken by it inquire as to the observance or them hereunder performance of any of the agreements contained in, or in connection herewithconditions of, except for actions that are finally judicially determined this Agreement or any Security Document, or to have resulted from its inspect the properties, books or their own gross negligence or willful misconductrecords of the Company.
(bc) U.S. The Collateral Agent shall be entitled to request rely, and rely shall be fully protected in relying, upon any certificationwriting, notice resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex, statement or other communication (including any thereof by telex, telecopy, telegram or cable) document believed by it to be genuine and correct and to have been signed signed, sent or sent made by or on behalf of the proper person Person or personsPersons, and upon advice and statements of legal counsel (including counsel to the Obligors or any of their subsidiaries)counsel, independent accountants and other experts selected by U.S. the Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting uponAgent. Without limiting any rights of U.S. Collateral Agent hereunder, U.S. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligees, and such instructions of Requisite Obligees, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Parties.
(c) Each of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco and each U.S. Pledgor (collectively, the “Indemnifying Parties”) agrees, jointly and severally, to indemnify U.S. Collateral Agent for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against U.S. Collateral Agent in any way relating to or arising out of any of this Agreement, the U.S. Security Documents, the Financing Documents or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof; provided, however, that no such Indemnifying Party shall be liable for any of the foregoing to the extent they are finally judicially determined to have resulted from the gross negligence or willful misconduct of U.S. Collateral Agent.
(d) Except for action expressly required of U.S. Collateral Agent hereunder, U.S. Collateral Agent shall, notwithstanding anything to the contrary in Section 7(c) hereof, in all cases be fully justified in failing or refusing to act hereunder take any action under this Agreement or under the U.S. any Security Documents Document unless it shall first receive written notice in the form specified in Section 3 from a Directing Party on behalf of the Majority Benefited Parties which notice is reasonably acceptable to the Collateral Agent and, if it so requests, it shall first be further indemnified to its satisfaction by the U.S. Secured Benefited Parties (or ratably in accordance with the lenders or holders represented thereby) amount of the Benefited Obligations held by such Benefited Parties against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.
(e) Except as expressly provided herein action to the extent not otherwise reimbursed hereunder. Any such indemnity given by a Benefited Party which is a bank, trust company, savings and in loan association, pension fund, investment company, insurance company, fraternal benefit society, broker or dealer or other similar financial institution or entity, regardless of legal form, may be unsecured at the U.S. Security Documents, U.S. option of such Benefited Party. The Collateral Agent shall have no duty to take any affirmative steps with respect to in all cases be fully protected in acting, or in refraining from acting, under this Agreement or the collection of amounts payable Security Documents in respect of the U.S. Collateral. U.S. Collateral Agent shall incur no liability to any U.S. Secured Party as a result of any sale of any U.S. Collateral at any private sale.
(f) (i) U.S. Collateral Agent may resign at any time by giving at least five (5) days’ notice thereof to the U.S. Secured Parties (such resignation to take effect as hereinafter provided) and U.S. Collateral Agent may be removed as U.S. Collateral Agent at any time by Requisite Obligees. In the event of such resignation or removal of U.S. Collateral Agent, Requisite Obligees shall thereupon have the right to appoint a successor U.S. Collateral Agent. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) days after the notice of the intent of U.S. Collateral Agent to resign, then the retiring U.S. Collateral Agent may, on behalf of the other U.S. Secured Parties, appoint a successor U.S. Collateral Agent. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(i) shall be a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000.accordance with
Appears in 1 contract
Samples: Intercreditor Agreement (Credit Acceptance Corporation)
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Party acknowledges that U.S. Collateral Agent shall not be the trustee of any U.S. Secured Party. U.S. Collateral Agent shall have no duties or responsibilities except those expressly set forth in this Agreement Agreement, the Collateral Documents or the U.S. Security DocumentsLoan Guaranties, and U.S. Collateral Agent shall not by reason of this Agreement Agreement, the Collateral Documents or the U.S. Security Documents Loan Guaranties be a trustee for any U.S. Secured Party or have any other fiduciary obligation to any U.S. Secured Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. Collateral Agent shall not be responsible to any U.S. Secured Party for any recitals, statements, representations or warranties contained in this Agreement Agreement, the Credit Agreement, the Other Permitted Credit Exposure Documents or any other documents evidencing or relating to any Other Permitted Credit Exposure, the New Senior Debt Documents (including the Existing Xxxxx-Xxxxxxxx Senior Secured Notes and the New Senior Debt Documents therefor), the Existing Holdings Senior Notes Indentures, the Existing Holdings Senior Notes, the Existing Holdings Senior Notes Subordinated Guaranty, the Refinancing Senior Debt Documents, the New Junior Debt Documents, the Collateral Documents or the Loan Guaranties (collectively, the “Financing Document Agreements”) or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing DocumentsAgreements, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents Agreements or any other document referred to or provided for therein or any Lien under the U.S. Security Collateral Documents or the perfection or priority of any such Lien or for any failure by any other party Party to perform any of its respective obligations under any of the Financing DocumentsAgreements. U.S. Collateral Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither U.S. Collateral Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from its or their own gross negligence or willful misconduct.
(b) U.S. Collateral Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telex, telecopy, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person Person or personsPersons, and upon advice and statements of legal counsel (including counsel to the Obligors Holdings or any Subsidiary of their subsidiariesHoldings), independent accountants and other experts selected by U.S. Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting uponAgent. Without limiting As to any rights of U.S. Collateral Agent hereundermatters not expressly provided for by this Agreement, U.S. Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligees, and such instructions of Requisite Obligees, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Parties.
(c) Each The Lender Agent on behalf of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco the Lenders and each U.S. Pledgor Other Permitted Credit Exposure Holder (collectively, the “Paying Indemnifying Parties”) agreesagrees that the Secured Parties represented by it shall indemnify Collateral Agent, jointly and severallyratably in accordance with the amount of the obligations held by such Secured Parties secured by the Collateral Documents, to indemnify U.S. the extent neither reimbursed by any Grantor under any Collateral Agent Document nor reimbursed out of any Proceeds pursuant to Section 3 hereof and the corresponding provisions of the Collateral Documents for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against U.S. Collateral Agent in any way relating to or arising out of any of this Agreement, the U.S. Security Documents, the Financing Documents Agreements or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof; provided, however, that no such Indemnifying Secured Party shall be liable for any of the foregoing to the extent they are finally judicially determined to have resulted arise from the gross negligence or willful misconduct of U.S. Collateral Agent. Each New Senior Debt Representative, on behalf of such New Senior Debt Representative and the holders in respect of which such New Senior Debt Representative is the Representative, agrees that, as provided in Section 3 hereof, Section 12 of the Pledge Agreement, Section 18 of the Security Agreement and the application of proceeds provision of each Mortgage, deductions from distributions otherwise due with respect to such New Senior Debt will be made so that the holders of such New Senior Debt shall share with the Paying Indemnifying Parties, ratably in accordance with the amount of New Senior Debt secured by the Collateral Documents, the payment of the amounts due under the preceding sentence. As provided in Section 3 hereof, and Section 12 of the Pledge Agreement, deductions from distributions otherwise due with respect to any Existing Holdings Senior Notes Trustee on behalf of the holders of Existing Holdings Senior Notes will be made so that such holders of Existing Holdings Senior Notes shall share with the Paying Indemnifying Parties, ratably in accordance with the amount (without duplication) of such Existing Holdings Senior Notes secured by the Pledge Agreement, the payment of the amounts due under the second preceding sentence. Each Refinancing Senior Debt Representative, on behalf of such Refinancing Senior Debt Representative and the holders in respect of which such Refinancing Senior Debt Representative is the Refinancing Senior Debt Representative, agrees that, as provided in Section 3 hereof, and Section 12 of the Pledge Agreement, deductions from distributions otherwise due with respect to such Refinancing Senior Debt will be made so that the holders of such Refinancing Senior Debt will share with the Paying Indemnifying Parties, ratably in accordance with the amount of Refinancing Senior Debt secured by the Pledge Agreement, the payment of the amounts due under the third preceding sentence. Each New Junior Debt Representative, on behalf of such New Junior Debt Representative and the holders in respect of which such New Junior Debt Representative is the New Junior Debt Representative, agrees that, as provided in and Section 3 hereof, and Section 12 of the Pledge Agreement, deductions from distributions otherwise due with respect to such New Junior Debt will be made so that the holders of such New Junior Debt will share with the Paying Indemnifying Parties, ratably in accordance with the amount of New Junior Debt secured by the Pledge Agreement, the payment of the amounts due under the fourth preceding sentence.
(d) Except for action expressly required of U.S. Collateral Agent hereunder, U.S. Collateral Agent shall, notwithstanding anything to the contrary in Section 7(c) hereof, in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its satisfaction by the U.S. Secured Parties (or the lenders or holders represented thereby) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.
(e) Collateral Agent may deem and treat the payee of any promissory note or other evidence of indebtedness relating to the Senior Secured Obligations, Second Priority Secured Obligations or Third Priority Secured Obligations as the owner thereof for all purposes hereof unless and until a written notice of the assignment or transfer thereof, signed by such payee and in form satisfactory to Collateral Agent, shall have been filed with Collateral Agent. Any request, authority or consent of any Person who at the time of making such request or giving such authority or consent is the holder of any such note or other evidence of indebtedness shall be conclusive and binding on any subsequent holder, transferee or assignee of such note or other evidence of indebtedness and of any note or notes or other evidences of indebtedness issued in exchange therefor.
(f) Except as expressly provided herein and in the U.S. Security Collateral Documents, U.S. Collateral Agent shall have no duty to take any affirmative steps with respect to the collection of amounts payable in respect of the U.S. Domestic Collateral. U.S. Collateral Agent shall incur no liability to any U.S. Secured Party as a result of any sale of any U.S. Domestic Collateral at any private sale.
(fg) (i) U.S. Until such time as the Senior Secured Obligations shall have been indefeasibly paid in full, Collateral Agent may resign at any time by giving at least five (5) 30 days’ notice thereof to the U.S. Secured Parties (such resignation to take effect as hereinafter provided) and U.S. Collateral Agent may be removed as U.S. Collateral Agent at any time by Requisite Obligees. In the event of such resignation or removal of U.S. Collateral Agent, Requisite Obligees shall thereupon have the right to appoint a successor U.S. Collateral Agent. If no successor U.S. Collateral Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) 30 days after the notice of the intent of U.S. Collateral Agent to resign, then the retiring U.S. Collateral Agent may, on behalf of the other U.S. Secured Parties, appoint a successor U.S. Collateral Agent. Any successor U.S. Collateral Agent appointed pursuant to this clause (f)(ii) (A) shall be a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000500,000,000 and (B) unless an Event of Default or Potential Event of Default shall have occurred and be continuing, shall be approved by Company.
(ii) After the indefeasible payment in full in cash of the Senior Secured Obligations and until such time as the Second Priority Secured Obligations are paid in full, Collateral Agent may resign at any time by giving at least 30 days’ notice thereof to each Existing Holdings Senior Notes Trustee (only if the Existing Holdings Senior Notes are then secured by any of the Domestic Collateral), and each Refinancing Senior Debt Representative (to the extent such Refinancing Senior Debt is then secured by any of the Domestic Collateral), (such resignation to take effect as hereinafter provided) and Collateral Agent may be removed as Collateral Agent at any time by the appropriate Requisite Obligees. In the event of any such resignation or removal of Collateral Agent, such Requisite Obligees shall thereupon have the right to appoint a successor Collateral Agent. If no successor Collateral Agent shall have been so appointed within 30 days after the notice of the intent of Collateral Agent to resign, then the retiring Collateral Agent may, on behalf of the Requisite Obligees, appoint a successor Collateral Agent. Any successor Collateral Agent appointed pursuant to this clause (ii) (A) shall be a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000 and (B) unless an Event of Default or Potential Event of Default shall have occurred and be continuing, shall, unless such successor Collateral Agent is appointed by the retiring Collateral Agent, be approved by Company.
(iii) After the indefeasible payment in full in cash of all Senior Secured Obligations and Second Priority Secured Obligations and until such time as the Third Priority Secured Obligations are paid in full, Collateral Agent may resign at any time by giving at least 30 days’ notice thereof to each New Junior Debt Representative (to the extent such New Junior Debt is then secured by any of the Domestic Collateral), (such resignation to take effect as hereinafter provided) and Collateral Agent may be removed as Collateral Agent at any time by the appropriate Requisite Obligees. In the event of any such resignation or removal of Collateral Agent, such Requisite Obligees shall thereupon have the right to appoint a successor Collateral Agent. If no successor Collateral Agent shall have been so appointed within 30 days after the notice of the intent of Collateral Agent to resign, then the retiring Collateral Agent may, on behalf of the Requisite Obligees, appoint a successor Collateral Agent. Any successor Collateral Agent appointed pursuant to this clause (iii) (A) shall be a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000 and (B) unless an Event of Default or Potential Event of Default shall have occurred and be continuing, shall, unless such successor Collateral Agent is appointed by the retiring Collateral Agent, be approved by Company.
(iv) Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, such successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Collateral Agent, and the retiring or removed Collateral Agent shall thereupon be discharged from its duties and obligations hereunder. After any retiring or removed Collateral Agent’s resignation or removal hereunder as Collateral Agent, the provisions of this Section 7 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 Collateral Agent.
(v) In no event shall Collateral Agent or any Secured Party be liable or responsible for any funds or investments of funds held by any Grantor or any affiliates thereof.
Appears in 1 contract
Disclaimers, Indemnity, Etc. (a) By becoming a party to this Agreement, each U.S. Secured Covered Party acknowledges that U.S. Collateral the Sharing Agent shall not be the trustee of any U.S. Secured Covered Party. U.S. Collateral The Sharing Agent shall have no duties or responsibilities except those expressly set forth in this Agreement or and the U.S. Security Documents, and U.S. Collateral Sharing Agent shall not by reason of this Agreement or the U.S. Security Documents be a trustee for any U.S. Secured Covered Party or have any other fiduciary obligation to any U.S. Secured Covered Party (including any obligation under the Trust Indenture Act of 1939, as amended). U.S. Collateral The Sharing Agent shall not be responsible to any U.S. Secured Covered Party for any recitals, statements, representations or warranties contained in this Agreement or any Financing Document or in any certificate or other document referred to or provided for in, or received by any of them under, any of the Financing Documents, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Financing Documents or any other document referred to or provided for therein or any Lien under the U.S. Security Documents or the perfection or priority of any such Lien or for any failure by any other party to perform any of its respective obligations under any of the Financing Documents. U.S. Collateral The Sharing Agent may employ agents and sub-collateral agents and attorneys-in-fact and shall not be responsible, except as to money or securities received by it or its authorized agents, for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither U.S. Collateral the Sharing Agent nor any of its directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by it or them hereunder or in connection herewith, except for actions that are finally judicially determined to have resulted from its or their own gross negligence or willful misconduct.
(b) U.S. Collateral The Sharing Agent shall be entitled to request and rely upon any certification, notice or other communication (including any thereof by telex, telecopy, telegram or cable) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person Person or personsPersons, and upon advice and statements of legal counsel (including counsel to the Obligors or any of their subsidiaries)counsel, independent accountants and other experts selected by U.S. Collateral Agent and shall in all cases be fully protected in acting or refraining from so acting uponthe Sharing Agent. Without limiting any rights of U.S. Collateral the Sharing Agent hereunder, U.S. Collateral the Sharing Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by Requisite Obligees, and such instructions of Requisite Obligees, and any action taken or failure to act pursuant thereto, shall be binding on all of the U.S. Secured Covered Parties.
(c) Each of Crown Holdings, CCSC, Crown International, Crown Usco, Crown Euroco and each U.S. Pledgor Covered Party (collectively, the “"Indemnifying Parties”") agreesagrees to -------------------- indemnify the Sharing Agent out of any Proceeds pursuant to Section 6 hereof, jointly and severally, to indemnify U.S. Collateral Agent for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against U.S. Collateral the Sharing Agent in any way relating to or arising out of this Agreement or any of this Agreement, the U.S. Security Documents, the Financing Documents or any other documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of the terms of any thereof; provided, however, that no such Indemnifying Party ------------------ shall be liable for any of the foregoing to the extent they are finally judicially determined to have resulted from the gross negligence or willful misconduct of U.S. Collateral the Sharing Agent.
(d) Except for action expressly required of U.S. Collateral the Sharing Agent hereunder, U.S. Collateral the Sharing Agent shall, notwithstanding anything to the contrary in Section 7(c10(c) hereof, in all cases be fully justified in failing or refusing to act hereunder or under the U.S. Security Documents unless it shall be further indemnified to its satisfaction by the U.S. Secured Covered Parties (or the lenders or holders represented thereby) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.
(e) Except as expressly provided herein and in the U.S. Security Documents, U.S. Collateral Agent shall have no duty to take any affirmative steps with respect to the collection of amounts payable in respect of the U.S. Collateral. U.S. Collateral Agent shall incur no liability to any U.S. Secured Party as a result of any sale of any U.S. Collateral at any private sale.
(f) (i) U.S. Collateral The Sharing Agent may resign at any time by giving at least five (5) 5 days’ ' notice thereof to the U.S. Secured Covered Parties (such resignation to take effect as hereinafter provided) and U.S. Collateral Agent may be removed as U.S. Collateral Agent at any time by Requisite Obligees). In the event of such resignation or removal of U.S. Collateral the Sharing Agent, the Requisite Obligees shall thereupon have the right to appoint a successor U.S. Collateral Sharing Agent. If no successor U.S. Collateral Sharing Agent shall have been so appointed by Requisite Obligees and shall have accepted such appointment within thirty (30) 30 days after the notice of the intent of U.S. Collateral the Sharing Agent to resign, then the retiring U.S. Collateral Sharing Agent may, on behalf of the other U.S. Secured Covered Parties, appoint a successor U.S. Collateral Sharing Agent. Any successor U.S. Collateral Sharing Agent appointed pursuant to this clause (f)(ie)(i) shall be a commercial bank organized under the laws of the United States of America or any state thereof and having a combined capital and surplus of at least $500,000,000.
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Samples: Global Participation and Proceeds Sharing Agreement (Crown Holdings Inc)
