No Second Lien Collateral Agent Duties or Waiver. Second Lien Agent shall have no duties or obligations except those expressly set forth herein and in the Second Lien Documents to which it is a party. Without limiting the generality of the foregoing, the Second Lien Agent: (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing; (b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the Second Lien Documents that Second Lien Agent is required to exercise as directed in writing by the requisite Second Lien Holders in accordance with the Indenture; provided that Second Lien Agent shall not, except as set forth herein, be required to take any action that, in its opinion or the opinion of its counsel, may expose such Second Lien Agent to liability or that is contrary to the Second Lien Documents to which it is a party, applicable law or court or administrative order; (c) shall not, except as expressly set forth in this Intercreditor Agreement and in the Second Lien Documents to which it is a party, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Grantor or any of their Subsidiaries or any of their respective affiliates that is communicated to or obtained by the Person serving as Second Lien Agent or any of its affiliates in any capacity; (d) shall be deemed not to have knowledge of any Default or Event of Default under any First Lien Documents unless and until written notice describing such Default or Event Default and stating that such notice is a “notice of default” is given to such Second Lien Agent by the First Lien Agent, for and on behalf of itself and the other Second Lien Secured Parties; and (e) shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Intercreditor Agreement or any First Lien Document, (ii) the contents of any certificate, report, instrument, letter, notice, or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Intercreditor Agreement, any First Lien Documents or any other agreement, instrument or document, or the validity, attachment, creation, perfection, priority or enforceability of any Lien purported to be created by the First Lien Documents, (v) the value or the sufficiency of any Collateral for First Lien Debt or (vi) the satisfaction of any condition set forth in any First Lien Documents, other than to confirm receipt of items expressly required to be delivered to Second Lien Agent. Nothing in this Intercreditor Agreement shall be construed to operate as a waiver by Second Lien Agent, with respect to any First Lien Secured Parties, any Grantor, any Guarantor, or any other Second Lien Secured Parties, of the benefit of any rights, privileges, immunities, exculpations, indemnities, or reliance rights contained in the Second Lien Documents and the Second Lien Agent shall be entitled to all such rights, privileges, immunities, exculpations, indemnities, or reliance rights in connection with the execution of this Intercreditor Agreement and in taking or omitting to take any actions hereunder, including, without limitation, exculpation from any liability for any action taken or not taken by it (a) with the consent or at the request of the requisite Second Lien Holders in accordance with the Indenture, (b) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable decision, or (c) in reliance on an Officers’ Certificate and/or Opinion of Counsel (as each such term is defined in the Indenture) stating that such action is permitted by the terms of this Intercreditor Agreement. For all purposes of this Intercreditor Agreement, Second Lien Agent may (i) rely in good faith, as to matters of fact, on any representation of fact believed by Second Lien Agent to be true (without any duty of investigation) and that is contained in a written certificate, report, instrument, letter, notice, or other document from the First Lien Agent or any authorized representative of any First Lien Secured Parties and (ii) assume in good faith (without any duty of investigation), and rely upon, the genuineness, due authority, validity, and accuracy of any certificate, instrument, notice, letter, or other document believed by it in good faith to be genuine and presented by the proper person. First Lien Agent and each of the other First Lien Secured Parties expressly acknowledge that the subordination and related agreements set forth herein by Second Lien Agent are made solely in its capacity as collateral agent and indenture trustee under the Second Lien Documents to which it is a party with respect to the Second Lien Debt issued thereunder and are not made by Second Lien Agent in its individual capacity.
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Samples: Intercreditor Agreement (A. M. Castle & Co.), Intercreditor Agreement (A. M. Castle & Co.), Intercreditor Agreement (Total Plastics, Inc.)
No Second Lien Collateral Agent Duties or Waiver. Second Lien Agent shall have no duties or obligations except those expressly set forth herein and in the Second Lien Documents to which it is a party. Without limiting the generality of the foregoing, the Second Lien Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the Second Lien Documents that Second Lien Agent is required to exercise as directed in writing by the requisite Second Lien Holders in accordance with the Indenture; provided that Second Lien Agent shall not, except as set forth herein, be required to take any action that, in its opinion or the opinion of its counsel, may expose such Second Lien Agent to liability or that is contrary to the Second Lien Documents to which it is a party, applicable law or court or administrative order;
(c) shall not, except as expressly set forth in this Intercreditor Agreement and in the Second Lien Documents to which it is a party, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Grantor or any of their Subsidiaries or any of their respective affiliates that is communicated to or obtained by the Person serving as Second Lien Agent or any of its affiliates in any capacity;
(d) shall be deemed not to have knowledge of any Default or Event of Default under any First Lien Documents unless and until written notice describing such Default or Event Default and stating that such notice is a “notice of default” is given to such Second Lien Agent by the First Lien Agent, for and on behalf of itself and the other Second Lien Secured Parties; and
(e) shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Intercreditor Agreement or any First Lien Document, (ii) the contents of any certificate, report, instrument, letter, notice, or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Intercreditor Agreement, any First Lien Documents or any other agreement, instrument or document, or the validity, attachment, creation, perfection, priority or enforceability of any Lien purported to be created by the First Lien Documents, (v) the value or the sufficiency of any Collateral for First Lien Debt or (vi) the satisfaction of any condition set forth in any First Lien Documents, other than to confirm receipt of items expressly required to be delivered to Second Lien Agent. Nothing in this Intercreditor Agreement shall be construed to operate as a waiver by Second Lien Agent, with respect to any First Lien Secured Parties, any Grantor, any Guarantor, or any other Second Lien Secured Parties, of the benefit of any rights, privileges, immunities, exculpations, indemnities, or reliance rights contained in the Second Lien Documents and the Second Lien Agent shall be entitled to all such rights, privileges, immunities, exculpations, indemnities, or reliance rights in connection with the execution of this Intercreditor Agreement and in taking or omitting to take any actions hereunder, including, without limitation, exculpation from any liability for any action taken or not taken by it (a) with the consent or at the request of the requisite Second Lien Holders in accordance with the Indenture, (b) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable decision, or (c) in reliance on an Officers’ Certificate and/or Opinion of Counsel (as each such term is defined in the Indenture) stating that such action is permitted by the terms of this Intercreditor Agreement. For all purposes of this Intercreditor Agreement, Second Lien Agent may (i) rely in good faith, as to matters of fact, on any representation of fact believed by Second Lien Agent to be true (without any duty of investigation) and that is contained in a written certificate, report, instrument, letter, notice, or other document from the First Lien Agent or any authorized representative of any First Lien Secured Parties and (ii) assume in good faith (without any duty of investigation), and rely upon, the genuineness, due authority, validity, and accuracy of any certificate, instrument, notice, letter, or other document believed by it in good faith to be genuine and presented by the proper person. First Lien Agent and each of the other First Lien Secured Parties expressly acknowledge that the subordination and related agreements set forth herein by Second Lien Agent are made solely in its capacity as collateral agent and indenture trustee under the Second Lien Documents to which it is a party with respect to the Second Lien Debt issued thereunder and are not made by Second Lien Agent in its individual capacity.. [SIGNATURE PAGES FOLLOW]
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No Second Lien Collateral Agent Duties or Waiver. Second Lien Agent shall have no duties or obligations except those expressly set forth herein and in the Second Lien Documents to which it is a party. Without limiting the generality of the foregoing, the Second Lien Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the Second Lien Documents that Second Lien Agent is required to exercise as directed in writing by the requisite Second Lien Holders in accordance with the Indenture; provided that Second Lien Agent shall not, except as set forth herein, be required to take any action that, in its opinion or the opinion of its counsel, may expose such Second Lien Agent to liability or that is contrary to the Second Lien Documents to which it is a party, applicable law or court or administrative order;
(c) shall not, except as expressly set forth in this Intercreditor Agreement and in the Second Lien Documents to which it is a party, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Grantor or any of their Subsidiaries or any of their respective affiliates that is communicated to or obtained by the Person serving as Second Lien Agent or any of its affiliates in any capacity;
(d) shall be deemed not to have knowledge of any Default or Event of Default under any First Lien Documents unless and until written notice describing such Default or Event Default and stating that such notice is a “notice of default” is given to such Second Lien Agent by the First Lien Agent, for and on behalf of itself and the other Second Lien Secured Parties; and
(e) shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Intercreditor Agreement or any First Lien Document, (iii) the contents of any certificate, report, instrument, letter, notice, or other document delivered hereunder or thereunder or in connection herewith or therewith, (iiii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (ivi) the validity, enforceability, effectiveness or genuineness of this Intercreditor Agreement, any First Lien Documents or any other agreement, instrument or document, or the validity, attachment, creation, perfection, priority or enforceability of any Lien purported to be created by the First Lien Documents, (vi) the value or the sufficiency of any Collateral for First Lien Debt or (vii) the satisfaction of any condition set forth in any First Lien Documents, other than to confirm receipt of items expressly required to be delivered to Second Lien Agent. Nothing in this Intercreditor Agreement shall be construed to operate as a waiver by Second Lien Agent, with respect to any First Lien Secured Parties, any Grantor, any Guarantor, or any other Second Lien Secured Parties, of the benefit of any rights, privileges, immunities, exculpations, indemnities, or reliance rights contained in the Second Lien Documents and the Second Lien Agent shall be entitled to all such rights, privileges, immunities, exculpations, indemnities, or reliance rights in connection with the execution of this Intercreditor Agreement and in taking or omitting to take any actions hereunder, including, without limitation, exculpation from any liability for any action taken or not taken by it (a) with the consent or at the request of the requisite Second Lien Holders in accordance with the Indenture, (b) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable decision, or (c) in reliance on an Officers’ Certificate and/or Opinion of Counsel (as each such term is defined in the Indenture) stating that such action is permitted by the terms of this Intercreditor Agreement. For all purposes of this Intercreditor Agreement, Second Lien Agent may (i) rely in good faith, as to matters of fact, on any representation of fact believed by Second Lien Agent to be true (without any duty of investigation) and that is contained in a written certificate, report, instrument, letter, notice, or other document from the First Lien Agent or any authorized representative of any First Lien Secured Parties and (ii) assume in good faith (without any duty of investigation), and rely upon, the genuineness, due authority, validity, and accuracy of any certificate, instrument, notice, letter, or other document believed by it in good faith to be genuine and presented by the proper person. First Lien Agent and each of the other First Lien Secured Parties expressly acknowledge that the subordination and related agreements set forth herein by Second Lien Agent are made solely in its capacity as collateral agent and indenture trustee under the Second Lien Documents to which it is a party with respect to the Second Lien Debt issued thereunder and are not made by Second Lien Agent in its individual capacity.
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