Instructions to Security Trustee and exercise of discretion. (a) Subject to paragraph (d) below, the Security Trustee shall act in accordance with any instructions given to it by the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as appropriate)) or, if so instructed by the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as appropriate)), refrain from exercising any right, power, authority or discretion vested in it as Security Trustee and shall be entitled to assume that: (i) any instructions received by it from the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as appropriate)) are duly given in accordance with the terms of the Finance Documents; and (ii) unless it has received actual notice of revocation, that those instructions or directions have not been revoked. (b) The Security Trustee shall be entitled to request instructions, or clarification of any direction, from the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as appropriate)) as to whether, and in what manner, it should exercise or refrain from exercising any rights, powers, authorities and discretions and the Security Trustee may refrain from acting unless and until those instructions or clarification are received by it. (c) Any instructions given to the Security Trustee by the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as appropriate)) shall override any conflicting instructions given by any other Party. (d) Paragraph (a) above shall not apply: (i) where a contrary indication appears in this Agreement; (ii) where this Agreement requires the Security Trustee to act in a specified manner or to take a specified action; (iii) in respect of any provision which protects the Security Trustee’s own position in its personal capacity as opposed to its role of Security Trustee for the Finance Parties including, without limitation, the provisions set out in Clauses 29.9 (Security Trustee’s discretions) to Clause 29.25 (Full freedom to enter into transactions); and (iv) in respect of the exercise of the Security Trustee’s discretion to exercise a right, power or authority under any of Clause 29.4 (Deductions from receipts) and Clause 29.5 (Prospective liabilities).
Appears in 2 contracts
Samples: Credit Agreement (DHT Holdings, Inc.), Credit Agreement (DHT Holdings, Inc.)
Instructions to Security Trustee and exercise of discretion. (a) Subject to paragraph paragraphs (d) and (e) below, the Security Trustee shall act in accordance with any instructions given to it by the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as appropriate)) an Instructing Group or, if so instructed by the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as appropriate))an Instructing Group, refrain from exercising any right, power, authority or discretion vested in it as Security Trustee and shall be entitled to assume that:
that (i) any instructions received by it from a Representative, the Facility Agent (acting on the instructions Creditors or a group of the Majority Lenders or all the Lenders (as appropriate)) Creditors are duly given in accordance with the terms of the Finance Documents; and
Debt Documents and (ii) unless it has received actual notice of revocation, that those instructions or directions have not been revoked.
(b) The Security Trustee shall be entitled to request instructions, or clarification of any direction, from the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as appropriate)) an Instructing Group as to whether, and in what manner, it should exercise or refrain from exercising any rights, powers, authorities and discretions and the Security Trustee may refrain from acting unless and until those instructions or clarification are received by it.
(c) Any Save as provided in Clause 12 (Enforcement of Transaction Security), any instructions given to the Security Trustee by the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as appropriate)) an Instructing Group shall override any conflicting instructions given by any other PartyParties.
(d) Paragraph (a) above shall not apply:
(i) where a contrary indication appears in this Agreement;
(ii) where this Agreement requires the Security Trustee to act in a specified manner or to take a specified action;
(iii) in respect of any provision which protects the Security Trustee’s own position in its personal capacity as opposed to its role of Security Trustee for the Finance Secured Parties including, without limitation, the provisions set out in Clauses 29.9 Clause 16.11 (Security Trustee’s discretions) to Clause 29.25 16.27 (Full freedom to enter into transactionsDisapplication); and;
(iv) in respect of the exercise of the Security Trustee’s discretion to exercise a right, power or authority under any of:
(A) Clause 13.1 (Non-Distressed Disposals);
(B) Clause 14.1 (Order of application);
(C) Clause 29.4 (Deductions from receipts) and Clause 29.5 14.2 (Prospective liabilities);
(D) Clause 14.3 (Treatment of RCF Cash Cover and Revolving Facility Cash Collateral); and
(E) Clause 14.6 (Permitted Deductions).
(e) If giving effect to instructions given by an Instructing Group would (in the Security Trustee’s opinion) have an effect equivalent to an Intercreditor Amendment, the Security Trustee shall not act in accordance with those instructions unless consent to it so acting is obtained from each Party (other than the Security Trustee) whose consent would have been required in respect of that Intercreditor Amendment.
(f) In exercising any discretion to exercise a right, power or authority under this Agreement where either:
(i) it has not received any instructions from an Instructing Group as to the exercise of that discretion; or
(ii) the exercise of that discretion is subject to paragraph (d)(iv) above, the Security Trustee shall do so having regard to the interests of all the Secured Parties.
(g) In determining the amount of the Senior Secured Liabilities of any Senior Secured Noteholder or group of Senior Secured Noteholders for any purposes under this Agreement whether requests from, or the consent of, the Majority Senior Creditors have been obtained the Security Trustee shall only be required to consider:
(i) in respect of Senior Secured Noteholders (other than Additional Senior Secured Creditors), instructions from the Senior Secured Trustee (in accordance with the relevant Senior Secured Documents) indicating the amount of the Senior Secured Liabilities held by the relevant Senior Secured Noteholders requesting or consenting to such action; and
(ii) in respect of Additional Senior Secured Creditors, instructions from the applicable Additional Senior Secured Trustee (in accordance with the applicable Senior Secured Debt Instrument) indicating the amount of the Additional Senior Secured Liabilities held by the relevant Additional Senior Secured Creditors.
Appears in 1 contract
Instructions to Security Trustee and exercise of discretion. (a) Subject to paragraph (d) below, the Security Trustee shall act in accordance with any instructions given to it by the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as appropriate)) or, if so instructed by the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as appropriate)), refrain from exercising any right, power, authority or discretion vested in it as Security Trustee and shall be entitled to assume that:
(i) any instructions received by it from the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as appropriate)) are duly given in accordance with the terms of the Finance Documents; and
and (ii) (ii) unless it has received actual notice of revocation, that those instructions or directions have not been revoked.
(b) The Security Trustee shall be entitled to request instructions, or clarification of any direction, from the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as appropriate)) as to whether, and in what manner, it should exercise or refrain from exercising any rights, powers, authorities and discretions and the Security Trustee may refrain from acting unless and until those instructions or clarification are received by it.
(c) Any instructions given to the Security Trustee by the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as appropriate)) shall override any conflicting instructions given by any other Party.
(d) Paragraph (a) a )above shall not apply:
(i) where a contrary indication appears in this Agreement;
(ii) where this Agreement requires the Security Trustee to act in a specified manner or to take a specified action;
; (iii) in respect of any provision which protects the Security Trustee’s Trustee 's own position in its personal capacity as opposed to its role of Security Trustee for the Finance Creditor Parties including, without limitation, the provisions set out in Clauses 29.9 26.10 (Security Trustee’s 's discretions) to Clause 29.25 26.29 (Full freedom to enter into transactions); and
(iv) in respect of the exercise of the Security Trustee’s discretion to exercise a right, power or authority under any of Clause 29.4 (Deductions from receipts) and Clause 29.5 (Prospective liabilities).
Appears in 1 contract
Instructions to Security Trustee and exercise of discretion. (a) Subject to paragraph paragraphs (d) and (e) below, the Security Trustee shall act in accordance with any instructions given to it by the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as appropriate)) an Instructing Group or, if so instructed by the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as appropriate))an Instructing Group, refrain from exercising any right, power, authority or discretion vested in it as Security Trustee and shall be entitled to assume that:
that (i) any instructions received by it from a Representative, the Facility Agent (acting on the instructions Creditors or a group of the Majority Lenders or all the Lenders (as appropriate)) Creditors are duly given in accordance with the terms of the Finance Debt Documents; and
(ii) unless it has received actual notice of revocation, that those instructions or directions have not been revoked; (iii) if it receives any instruction to act in respect of the Transaction Security, that all applicable conditions under the Debt Documents for so acting have been satisfied and (iv) may rely on a certificate from any person (A) as to any matter or fact or circumstance which might reasonably be expected to be within the knowledge of that person; or (B) to the effect that such a person approves of any particular dealing, transaction, step, action or thing, as sufficient evidence that that is the case and, in the case of paragraph (A) above, may assume the truth and accuracy of that certificate.
(b) The Security Trustee shall be entitled to request instructions, or clarification of any direction, from an Instructing Group (or if this Agreement stipulates the Facility Agent (acting on the instructions matter is a decision for any other Creditor or group of the Majority Lenders Creditors from that Creditor or all the Lenders (as appropriate)group of Creditors) as to whether, and in what manner, it should exercise or refrain from exercising any rights, powers, authorities and discretions and the Security Trustee may refrain from acting unless and until those instructions or clarification are received by it.
(c) Any Save as provided in Clause 13 (Enforcement of Transaction Security), and save in the case of decisions stipulated to be a matter for any other Creditor or group of Creditors under this Agreement and unless a contrary intention appears in this Agreement any instructions given to the Security Trustee by the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as appropriate)) an Instructing Group shall override any conflicting instructions given by any other PartyParties.
(d) Paragraph (a) above shall not apply:
(i) where a contrary indication appears in this Agreement;
(ii) where this Agreement requires the Security Trustee to act in a specified manner or to take a specified action;
(iii) in respect of any provision which protects the Security Trustee’s own position in its personal capacity as opposed to its role of Security Trustee for the Finance Secured Parties including, without limitation, the provisions set out in Clauses 29.9 Clause 17.11 (Security Trustee’s discretions) to Clause 29.25 17.26 (Full freedom to enter into transactionsDisapplication); and;
(iv) in respect of the exercise of the Security Trustee’s discretion to exercise a right, power or authority under any of:
(A) Clause 14.1 (Non-Distressed Disposals);
(B) Clause 15.1 (Order of application);
(C) Clause 29.4 (Deductions from receipts) and Clause 29.5 15.2 (Prospective liabilities);
(D) Clause 15.3 (Treatment of RCF Cash Cover and Revolving Facility Cash Collateral); and
(E) Clause 15.6 (Permitted Deductions).
(e) If giving effect to instructions given by an Instructing Group would (in the Security Trustee’s opinion) have an effect equivalent to an Intercreditor Amendment, the Security Trustee shall not act in accordance with those instructions unless consent to it so acting is obtained from each Party (other than the Security Trustee) whose consent would have been required in respect of that Intercreditor Amendment.
(f) In exercising any discretion to exercise a right, power or authority under the Debt Documents where either:
(i) it has not received any instructions from an Instructing Group as to the exercise of that discretion; or
(ii) the exercise of that discretion is subject to paragraph (d)(iv) above, the Security Trustee shall: (A) other than where paragraph (B) applies do so having regard to the interests of all the Secured Parties; or if (in its opinion) there is a Creditor Conflict in relation to the matter in respect of which the discretion is to be exercised, do so having regard only to the interests of all the Super Senior Creditors.
(g) In determining the amount of the Senior Secured Notes Liabilities of any Senior Secured Noteholder or group of Senior Secured Noteholders for any purposes under this Agreement whether requests from, or the consent of, the Majority Senior Creditors have been obtained the Security Trustee shall only be required to consider:
(i) in respect of Senior Secured Noteholders (other than Additional Senior Secured Notes Creditors), instructions from the Senior Secured Notes Trustee (in accordance with the relevant Senior Secured Notes Documents) indicating the amount of the Senior Secured Notes Liabilities held by the relevant Senior Secured Noteholders requesting or consenting to such action; and
(ii) in respect of Additional Senior Secured Notes Creditors, instructions from the applicable Additional Senior Secured Notes Trustee (in accordance with the applicable Senior Secured Debt Instrument) indicating the amount of the Additional Senior Secured Notes Liabilities held by the relevant Additional Senior Secured Notes Creditors.
(h) In determining the amount of the Senior Unsecured Notes Liabilities of any Senior Unsecured Noteholder or group of Senior Unsecured Noteholders for any purposes under this Agreement whether requests from, or the consent of, the Majority Senior Unsecured Notes Creditors have been obtained the Security Trustee shall only be required to consider instructions from the relevant Senior Unsecured Notes Trustee (in accordance with the relevant Senior Unsecured Notes Documents) indicating the amount of the Senior Unsecured Notes Liabilities held by the relevant Senior Unsecured Noteholders requesting or consenting to such action.
(i) The Security Trustee may refrain from acting in accordance with any instructions of any Creditor or group of Creditors until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Debt Documents and which may include payment in advance) for any cost, loss or liability (together with any applicable VAT) which it may incur in complying with those instructions.
(j) The Security Trustee may at any time engage and pay for the services of any lawyers to act as independent counsel to the Security Trustee (and so separate from any lawyers instructed by any Primary Creditor) if the Security Trustee in its reasonable opinion deems this to be desirable.
(k) The Security Trustee may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Security Trustee or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.
(l) The Security Trustee, any Receiver and any Delegate may act in relation to the Debt Documents and the Security Property through its officers, employees and agents and shall not:
(i) be liable for any error of judgment made by any such person; or
(ii) be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person, unless such error or such loss was directly caused by the Security Trustee’s, Receiver’s or Delegate’s gross negligence or wilful misconduct.
(m) Unless this Agreement expressly specifies otherwise, the Security Trustee may disclose to any other Party any information it reasonably believes it has received as security trustee under this Agreement.
(n) Notwithstanding any other provision of any Debt Document to the contrary, the Security Trustee is not obliged to do or omit to do anything if it would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
(o) Notwithstanding any provision of any Debt Document to the contrary, the Security Trustee is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
Appears in 1 contract
Instructions to Security Trustee and exercise of discretion. (a) Subject to paragraph paragraphs (d) and (e) below, the Security Trustee shall act in accordance with any instructions given to it by the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as appropriate)) an Instructing Group or, if so instructed by the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as appropriate))an Instructing Group, refrain from exercising any right, power, authority or discretion vested in it as Security Trustee and shall be entitled to assume that:
that (i) any instructions received by it from an Agent, the Facility Agent (acting on the instructions Creditors or a group of the Majority Lenders or all the Lenders (as appropriate)) Creditors are duly given in accordance with the terms of the Finance Documents; and
Documents and (ii) unless it has received actual notice of revocation, that those instructions or directions have not been revoked.
(b) The Security Trustee shall be entitled to request instructions, or clarification of any direction, from the Facility Agent an Instructing Group (acting on the instructions of or from the Majority Lenders or all the Junior Lenders (as appropriateto the extent they are entitled to give instructions to the Security Trustee pursuant to Clause 9 (Enforcement of Transaction Security))) as to whether, and in what manner, it should exercise or refrain from exercising any rights, powers, authorities and discretions and the Security Trustee may refrain from acting unless and until those instructions or clarification are received by it.
(c) Any Save as provided in Clause 9 (Enforcement of Transaction Security), any instructions given to the Security Trustee by the Facility Agent (acting on the instructions of the Majority Lenders or all the Lenders (as appropriate)) an Instructing Group shall override any conflicting instructions given by any other PartyParties.
(d) Paragraph (a) above shall not apply:
(i) where a contrary indication appears in this Agreement;
(ii) where this Agreement requires the Security Trustee to act in a specified manner or to take a specified action;
(iii) in respect of any provision which protects the Security Trustee’s own position in its personal capacity as opposed to its role of Security Trustee for the Finance Secured Parties including, without limitation, the provisions set out in Clauses 29.9 12.5 (Security Trustee’s discretions) to Clause 29.25 12.21 (Full freedom to enter into transactionsDisapplication); and;
(iv) in respect of the exercise of the Security Trustee’s discretion to exercise a right, power or authority under any of:
(A) Clause 10.1 (Non-Distressed Disposals);
(B) Clause 11.1 (Order of application);
(C) Clause 29.4 (Deductions from receipts) and Clause 29.5 11.2 (Prospective liabilities);
(D) Clause 11.3 (Treatment of SFA Cash Cover); and
(E) Clause 11.6 (Permitted Deductions).
(e) If giving effect to instructions given by an Instructing Group would (in the Security Trustee’s opinion) have an effect equivalent to an Intercreditor Amendment, the Security Trustee shall not act in accordance with those instructions unless consent to it so acting is obtained from each Party (other than the Security Trustee) whose consent would have been required in respect of that Intercreditor Amendment.
(f) In exercising any discretion to exercise a right, power or authority under this Agreement where either:
(i) it has not received any instructions from an Instructing Group as to the exercise of that discretion; or
(ii) the exercise of that discretion is subject to paragraph (d)(iv) above, the Security Trustee shall:
(A) other than where paragraph (B) below applies, do so having regard to the interests of all the Secured Parties; or
(B) if (in its opinion) there is a Creditor Conflict in relation to the matter in respect of which the discretion is to be exercised, do so having primary regard to the interests of all the Senior Creditors.
Appears in 1 contract
