Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and each of the Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Notes Collateral Agent to take such action on their behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor or any other Person, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. (b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith. (c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates. (d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable). (e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements). (f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notes
Appears in 2 contracts
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Company and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Collateral Documents and the Trustee Intercreditor Agreements, and the Company and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicable, Agreements and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicableAgreements, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreements and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0418.07. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreements and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicableAgreements, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Collateral Documents and the Intercreditor Agreements to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor the Company or any other PersonNote Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, Documents and the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Agreements or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements by or through receivers, interim receivers, managers, monitors, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, interim receiver, manager, monitor, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement Document or the Second Lien Intercreditor Agreement, if applicable Agreements or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Company or any Grantor other Note Party or Affiliate of any GrantorNote Party, or any Officer or Related Persons Person thereof, contained in this Indenture, the Collateral Documents or any other Notes Documentsthe Intercreditor Agreements, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicableAgreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicableAgreements, or for any failure of any Grantor Note Party or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements or to inspect the properties, books, or records of any Grantor Note Party or any GrantorNote Party’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Company or any Grantorother Note Party), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its reasonable satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements18.07).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the IssuerCompany, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Company shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Trustee, at the direction of the Holders of a majority of the aggregate principal amount of the Notes Collateral Agent then outstanding, may appoint, after consulting with the Trusteeappoint a successor collateral agent, subject to the consent of the Issuers Company (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. The Holders of a majority in aggregate principal amount of the Notes at the time outstanding may at any time remove the Notes Collateral Agent and nominate a successor collateral agent that shall be deemed appointed as successor collateral agent by giving written notice of such removal and appointment to the Company and by delivering notice thereof to the remaining Holders (if any). Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notesor removed Notes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring or removed Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation or removal hereunder, the provisions of this Section 18.07 shall continue to inure to its benefit and the retiring or removed Notes Collateral Agent shall not by reason of such resignation or removal be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 2 contracts
Samples: Indenture (Invacare Corp), Indenture (Invacare Corp)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association the Trustee to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Collateral Cooperation Agreement and the Second Lien Intercreditor Agreement, if applicable, Agreements and each of the Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Collateral Cooperation Agreement and the Second Lien Intercreditor Agreement, if applicable, Agreements and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Collateral Cooperation Agreement and the Second Lien Intercreditor Agreement, if applicableAgreements, and consents and agrees to the terms of the Pari Passu Intercreditor Collateral Cooperation Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreements and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association The Trustee hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Collateral Cooperation Agreement and the Second Lien Intercreditor Agreement, if applicable, Agreements and acknowledges that the Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0411.12. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Collateral Cooperation Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreements and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Collateral Cooperation Agreement and the Second Lien Intercreditor AgreementAgreements, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, the Pari Passu Intercreditor Collateral Cooperation Agreement or the Second Lien Intercreditor Agreement, if applicable Agreements or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties or exercise any rights under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Collateral Cooperation Agreement or the Second Lien Intercreditor Agreement, if applicable Agreements by or through receivers, agents, employees, attorneys-in-fact or through its officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) Persons and shall be entitled to advice of counsel concerning all matters pertaining to such dutiesduties and rights, and and, in the absence of gross negligence or willful misconduct on its part, shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Collateral Cooperation Agreement or the Second Lien Intercreditor Agreement, if applicable Agreements or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Company or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Collateral Cooperation Agreement or the Second Lien Intercreditor Agreement, if applicableAgreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Collateral Cooperation Agreement or the Second Lien Intercreditor Agreement, if applicableAgreements, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Collateral Cooperation Agreement or the Second Lien Intercreditor Agreement, if applicable Agreements to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Collateral Cooperation Agreement or the Second Lien Intercreditor Agreement, if applicable Agreements or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The In the absence of gross negligence or willful misconduct on its part, the Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Company or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Collateral Cooperation Agreement or the Second Lien Intercreditor Agreement, if applicable Agreements unless it shall first receive such advice or concurrence direction of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari other Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) Representative and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other other Pari Passu Lien Obligations (if applicableany)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Collateral Cooperation Agreement or the Second Lien Intercreditor Agreement, if applicable Agreements in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari other Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other other Pari Passu Lien Obligations (if applicableany).
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested directed by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 11.12 and the terms of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the IssuerCompany, such resignation to be effective upon the acceptance of a successor agent to of its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Company shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed by the Company prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the Notes Collateral Agent’s notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the Notes Collateral Agent’s notice of resignation) ), the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor notes collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring hereunder, the provisions of this Section 11.12 (and Section 7.06) shall continue to inure to the benefit of the retiring Notes Collateral Agent and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 2 contracts
Samples: Indenture (United States Steel Corp), Indenture (United States Steel Corp)
Notes Collateral Agent. (a) By their Each of the Holders by acceptance of the Notes, the Holders and each beneficial owner of an interest in a Note, hereby designate designates and appoint Wilmington Trust, National Association to serve as the Notes Collateral Agent and as their its agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture and the Second Lien Intercreditor Agreement, if applicable, Note Documents and each of the Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture and the Second Lien Intercreditor Agreement, if applicable, Note Documents and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture and the Second Lien Intercreditor Agreement, if applicableNote Documents, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Notes Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their its respective termsterms or the terms of this Indenture. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.0912.02. The provisions of this Section 13.09 12.02 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any and none of the Holders nor any of the Grantors Issuer or the Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04herein. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, Indenture and/or the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and the Collateral applicable Note Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, Indenture or the Collateral Note Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Note Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other Personthe Issuer or a Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Note Documents or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Note Documents by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable).
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notes
Appears in 2 contracts
Samples: Indenture (Embecta Corp.), Indenture (Embecta Corp.)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Security Documents and the Intercreditor Agreements and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicable, Agreements and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicableAgreements, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreements and each Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.0912.08. The provisions of this Section 13.09 12.08 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor the Issuer or any of the Grantors Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0412.03. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreements and the Collateral Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicableAgreements, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Intercreditor Agreements and the other Notes Security Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or the Issuer or any other PersonGuarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, Security Documents and the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Agreements or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable Agreements by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisorsadvisors and attorneys-in-fact of such Person and its Affiliates, and attorneys in fact (collectively, a “Related PersonsPerson”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Affiliates of the Notes Collateral Agent and any such sub-agent.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconductmisconduct as determined by a final nonappealable order of a court of competent jurisdiction) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement Security Document or the Second Lien Intercreditor Agreement, if applicable Agreements or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconductmisconduct as determined by a final nonappeable order of a court of competent jurisdiction), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Issuer or any Grantor Guarantor or Affiliate of the Issuer or any GrantorGuarantor, or any Officer or Related Persons Person thereof, contained in this Indenture, the Notes or any other Notes Security Documents, the Intercreditor Agreements, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicableAgreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicableAgreements, or for any failure of the Issuer or any Grantor Guarantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable Agreements to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable Agreements or to inspect the properties, books, or records of any Grantor the Issuer or any GrantorGuarantor or the Issuer’s or any of the Guarantors’ Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any GrantorGuarantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable Agreements unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability liability, loss and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable Agreements in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” and such notice references the Notes, the Issuer and this Indenture. The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notes12.08
Appears in 1 contract
Samples: Indenture (RR Donnelley & Sons Co)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture the Collateral Documents and the Intercreditor Agreements and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicable, Agreements and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor AgreementAgreements, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Document, together with such powers as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09are reasonably incidental thereto. The provisions of this Section 13.09 13.11 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders Holders, the Issuer nor any of the Grantors Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders13.03. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor AgreementAgreements, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a party, responsibilities hereunder nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGuarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, Documents and the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Agreements or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The . Except as expressly otherwise provided in this Indenture, the Notes Collateral Agent shall have and may perform use its sole discretion with respect to exercising or refraining from exercising any of its duties discretionary rights or taking or refraining from taking any actions which the Notes Collateral Agent is expressly entitled to take or assert under this Indenture, the Collateral DocumentsDocuments and the Intercreditor Agreements, including the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its officers, directors, Affiliates, employees, agents, advisorsexercise of remedies pursuant to Article 6, and attorneys in fact (collectively, “Related Persons”) and any action so taken or not taken shall be entitled deemed consented to advice of counsel concerning all matters pertaining to such duties, by the Trustee and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithHolders.
(cb) None of the Notes Collateral Agent or any of its Related Persons Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement Document or the Second Lien Intercreditor Agreement, if applicable Agreements or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Issuer or any Grantor Guarantor, or any officer or Affiliate of any Grantor, or any Officer or Related Persons thereofof the foregoing, contained in this Indenture, or any other Notes DocumentsIndenture, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this or any other Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicableAgreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this or any other Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicableAgreements, or for any failure of the Issuer, any Grantor Guarantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons Affiliates shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this or any other Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements or to inspect the properties, books, or records of the Issuer, any Grantor Guarantor or any GrantorGuarantor’s Affiliates.
(c) The Notes Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Issuer, any Guarantor and their Affiliates as though it was not the Notes Collateral Agent hereunder and without notice to or consent of the Trustee. The Trustee and the Holders acknowledge that, pursuant to such activities, the Notes Collateral Agent or its Affiliates may receive information regarding the Issuer, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Issuer, any such Guarantor or such Affiliate) and acknowledge that the Notes Collateral Agent shall not be under any obligation to provide such information to the Trustee or the Holders. Nothing herein shall impose or imply any obligation on the part of the Notes Collateral Agent to advance funds.
(d) The Notes Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreements, (iii) bind the Holders on the terms as set forth in the Collateral Documents and the Intercreditor Agreements and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreements.
(e) The Trustee agrees that it shall not (and shall not be entitled to relyobliged to), and shall be fully protected in relyingnot instruct the Notes Collateral Agent to, upon any writingunless specifically requested to do so by a majority of the Holders, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, take or other communication, document or conversation (including those by telephone or e-mail) believed by it cause to be genuine and correct and taken any action to have been signed, sent, enforce its rights under this Indenture or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to against the Issuer or any Grantor)Guarantor, independent accountants including the commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the Collateral. If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Notes Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Notes Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 6, the Trustee shall promptly turn the same over to the Notes Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Notes Collateral Agent.
(f) The Trustee is each Holder’s agent for the purpose of perfecting the Holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon request from the Issuer, the Trustee shall notify the Notes Collateral Agent thereof, and, promptly upon the Notes Collateral Agent’s request therefor shall deliver such Collateral to the Notes Collateral Agent or otherwise deal with such Collateral in accordance with the Notes Collateral Agent’s instructions.
(g) The Notes Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by the Issuer or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Notes Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Issuer or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Notes Collateral Agent pursuant to this Indenture, any Collateral Document or the Intercreditor Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Notes Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Notes Collateral Agent’s own interest in the Collateral and that the Notes Collateral Agent shall have no other experts duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(h) No provision of this Indenture, the Intercreditor Agreements or any Collateral Document shall require the Notes Collateral Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Holders (or the Trustee in the case of the Notes Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Notes Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Notes Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Notes Collateral Agent may agree in writing with the Issuer (and advisors selected money held in trust by the Notes Collateral AgentAgent need not be segregated from other funds except to the extent required by law), (iii) the Notes Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Notes Collateral Agent shall not be bound construed to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing impose duties to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)act.
(ej) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of Neither the Notes Collateral Agent shall have received written notice from nor the Trustee shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the Issuers referring to this Indenturefact, describing such Default fire, communication line failures, computer viruses, power failures, earthquakes or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agentother disasters. If Neither the Notes Collateral Agent resigns under this Indenture nor the Trustee shall be liable for any indirect, special or the Pari Passu Intercreditor Agreementconsequential damages (included but not limited to lost profits) whatsoever, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date even if it has been informed of the resignation likelihood thereof and regardless of the Notes Collateral Agent (as stated in the notice form of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notesaction.
Appears in 1 contract
Samples: Senior Secured Notes Indenture (American Tire Distributors Holdings, Inc.)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its collateral agent under this Indenture, the Security Agreement, the Security Documents, the Collateral Trust Agreement and the Intercreditor Agreement and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Security Agreement, the Security Documents, the Pari Passu Intercreditor Collateral Trust Agreement and the Second Lien Intercreditor Agreement, if applicable, Agreement and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Security Agreement, the Security Documents, the Pari Passu Intercreditor Collateral Trust Agreement and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Document, together with such powers as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective termsare reasonably incidental thereto. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.091410. The provisions of this Section 13.09 1410 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor the Issuers or any of the Grantors Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders1403. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Security Agreement, the Security Documents, the Pari Passu Intercreditor Collateral Trust Agreement and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and or in the other Notes Documents to which the Notes Collateral Agent is a partySecurity Documents, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or the Issuers or any other PersonGuarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Security Agreement, the Security Documents, the Pari Passu Collateral Trust Agreement and the Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects Except as long as such selection was made in good faith.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained expressly otherwise provided in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable).
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Trustee Notes Collateral Agent is expressly entitled to take or the Issuers referring to assert under this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes the Security Agreement, the Security Documents, the Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 Trust Agreement and the terms Intercreditor Agreement, including the exercise of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at remedies pursuant to Article Five, and any time action so taken or not taken shall be deemed consented to by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesHolders.
Appears in 1 contract
Samples: Indenture (TRAC Intermodal LLC)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the ABL-Notes Intercreditor Agreement and the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and each of the Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes authorize the Notes Collateral Agent to take such action on their behalf under the provisions of this Indenture, the Collateral Documents, Documents and the Pari Passu ABL-Notes Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu ABL-Notes Intercreditor Agreement and the Second Lien Pari Passu Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu ABL-Notes Intercreditor Agreement, the Second Lien Pari Passu Intercreditor Agreement, if applicable, Agreement and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the ABL-Notes Intercreditor Agreement and the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.0913.9. The provisions of this Section 13.09 13.9 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0413.4. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu ABL-Notes Intercreditor Agreement, the Second Lien Pari Passu Intercreditor Agreement, if applicable, Agreement and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu ABL-Notes Intercreditor Agreement and the Second Lien Pari Passu Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Note Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, the ABL-Notes Intercreditor Agreement or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the ABL-Notes Intercreditor Agreement or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) Persons and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the ABL-Notes Intercreditor Agreement or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Company or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Note Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu ABL-Notes Intercreditor Agreement or the Second Lien Pari Passu Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu ABL-Notes Intercreditor Agreement or the Second Lien Pari Passu Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the ABL-Notes Intercreditor Agreement or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the ABL-Notes Intercreditor Agreement or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Company or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the ABL-Notes Intercreditor Agreement or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the ABL-Notes Intercreditor Agreement or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable).
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Trust Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 13.9 and the terms of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the IssuerCompany, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers Company shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notes
Appears in 1 contract
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Security Agreement, the Pledge Agreement, the Security Documents and the Intercreditor Agreement and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Pledge Agreement, the Security Documents and the Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Intercreditor Agreement Pledge Agreement, the Security Documents and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Document, together with such powers as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective termsare reasonably incidental thereto. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.091410. The provisions of this Section 13.09 1410 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor the Company or any of the Grantors Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders1403. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Intercreditor Agreement Pledge Agreement, the Security Documents and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a partyherein, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or the Company or any other PersonGuarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Pledge Agreement, the Security Documents and the Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects Except as long as such selection was made in good faith.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained expressly otherwise provided in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable).
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Trustee Notes Collateral Agent is expressly entitled to take or the Issuers referring to assert under this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or Security Agreement, the Holders of a majority in aggregate principal amount of Pledge Agreement, the Notes (subject to this Section 13.09 Security Documents and the terms Intercreditor Agreement, including the exercise of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at remedies pursuant to Article Five, and any time action so taken or not taken shall be deemed consented to by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesHolders.
Appears in 1 contract
Samples: Indenture (Sealy Corp)
Notes Collateral Agent. (a) By their The Company and each of the Holders by acceptance of the Notes, the Holders and each beneficial owner of an interest in a Note, hereby designate and appoint Wilmington Trust, National Association to serve as the Notes Collateral Agent and as their its agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, Security Documents and each of the Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture and the Second Lien Intercreditor Agreement, if applicableSecurity Documents, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective termsterms or the terms of this Indenture. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.0912.07. The provisions of this Section 13.09 12.07 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors Obligors shall have any rights as a third third-party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04herein. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, Indenture and/or the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and the Collateral applicable Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture and the Second Lien Intercreditor Agreement, if applicableSecurity Documents, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Notes, Guarantees or Security Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonObligor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Security Documents or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of Neither the Notes Collateral Agent or nor any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Security Document or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Company or any Grantor other Obligor or Affiliate of any GrantorObligor, or any Officer or Related Persons Person thereof, contained in this Indenture, the Notes, the Guarantees or any other Notes the Security Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicableSecurity Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicableSecurity Documents, or for any failure of any Grantor Obligor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents to perform its obligations hereunder or thereunder. None of Neither the Notes Collateral Agent or nor any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents or to inspect the properties, books, or records of any Grantor Obligor or any GrantorObligor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, (in each case in the absence of gross negligence or willful misconduct) upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Company or any Grantorother Obligor), independent accountants and and/or other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Unless otherwise expressly required hereunder or pursuant to any Security Document, the Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, Indenture or the Collateral Security Documents, the Pari Passu Intercreditor Agreement and shall incur no liability by reason of such failure or the Second Lien Intercreditor Agreementrefusal to take action, if applicable unless it shall first receive such written advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability liability, fees and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected from claims by any Holders in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements12.07).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the IssuerCompany, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Company shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent or 25% of Holders in aggregate principal amount of Notes may appoint, after consulting with the Trustee, subject to the consent of the Issuers Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction jurisdiction, at the expense of the Company, to appoint a successorsuccessor at the sole expense of the Company. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, such Notes Collateral Agent shall be fully and immediately discharged of all responsibilities under this Indenture and the Security Documents to which it is party, provided that the provisions of this Section 12.07 (and Section 7.07) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Notes Collateral Agent. (a) By their The Company and each of the Holders by acceptance of the Notes, the Holders and each beneficial owner of an interest in a Note, hereby designate and appoint Wilmington Trust, National Association to serve as the Notes Collateral Agent and as their its agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, Security Documents and each of the Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture and the Second Lien Intercreditor Agreement, if applicableSecurity Documents, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective termsterms or the terms of this Indenture. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.0912.07. The provisions of this Section 13.09 12.07 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors Obligors shall have any rights as a third third-party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04herein. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, Indenture and/or the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and the Collateral applicable Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture and the Second Lien Intercreditor Agreement, if applicableSecurity Documents, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes the Notes, Guarantees or Security Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonObligor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Security Documents or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of Neither the Notes Collateral Agent or nor any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Security Document or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Company or any Grantor other Obligor or Affiliate of any GrantorObligor, or any Officer or Related Persons Person thereof, contained in this Indenture, the Notes, the Guarantees or any other Notes the Security Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicableSecurity Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicableSecurity Documents, or for any failure of any Grantor Obligor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents to perform its obligations hereunder or thereunder. None of Neither the Notes Collateral Agent or nor any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents or to inspect the properties, books, or records of any Grantor Obligor or any GrantorObligor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, (in each case in the absence of gross negligence or willful misconduct) upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Company or any Grantorother Obligor), independent accountants and and/or other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Unless otherwise expressly required hereunder or pursuant to any Security Document, the Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, Indenture or the Collateral Security Documents, the Pari Passu Intercreditor Agreement and shall incur no liability by reason of such failure or the Second Lien Intercreditor Agreementrefusal to take action, if applicable unless it shall first receive such written advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability liability, fees and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected from claims by any Holders in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements12.07).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the IssuerCompany, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Company shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent or 25% of Holders in aggregate principal amount of Notes may appoint, after consulting with the Trustee, subject to the consent of the Issuers Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successorsuccessor at the sole expense of the Company. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as a Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, such Notes Collateral Agent shall be fully and immediately discharged of all responsibilities under this Indenture and the Security Documents to which it is party, provided that the provisions of this Section 12.07 (and Section 7.07) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was a Notes Collateral Agent under this Indenture.
Appears in 1 contract
Samples: Indenture (Apollo Commercial Real Estate Finance, Inc.)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Company and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Collateral Documents and the Trustee Intercreditor Agreements, and the Company and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicable, Agreements and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicableAgreements, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreements and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0418.07. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreements and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the #96856647v2 Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicableAgreements, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Collateral Documents and the Intercreditor Agreements to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor the Company or any other PersonNote Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, Documents and the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Agreements or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements by or through receivers, interim receivers, managers, monitors, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, interim receiver, manager, monitor, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement Document or the Second Lien Intercreditor Agreement, if applicable Agreements or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Company or any Grantor other Note Party or Affiliate of any GrantorNote Party, or any Officer or Related Persons Person thereof, contained in this Indenture, the Collateral Documents or any other Notes Documentsthe Intercreditor Agreements, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicableAgreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicableAgreements, or for any failure of any Grantor Note Party or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements or to inspect the properties, books, or records of any Grantor Note Party or any GrantorNote Party’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Company or any Grantorother Note Party), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its reasonable satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable).Holders. #96856647v2
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements18.07).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the IssuerCompany, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Company shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Trustee, at the direction of the Holders of a majority of the aggregate principal amount of the Notes Collateral Agent then outstanding, may appoint, after consulting with the Trusteeappoint a successor collateral agent, subject to the consent of the Issuers Company (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. The Holders of a majority in aggregate principal amount of the Notes at the time outstanding may at any time remove the Notes Collateral Agent and nominate a successor collateral agent that shall be deemed appointed as successor collateral agent by giving written notice of such removal and appointment to the Company and by delivering notice thereof to the remaining Holders (if any). Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notesor removed Notes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring or removed Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation or removal hereunder, the provisions of this Section 18.07 shall continue to inure to its benefit and the retiring or removed Notes Collateral Agent shall not by reason of such resignation or removal be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Samples: Indenture (INVACARE HOLDINGS Corp)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Collateral Documents and the Intercreditor Agreement and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, Documents and the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreement and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.0912.9. The provisions of this Section 13.09 12.9 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0412.4. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreement and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, Documents and the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisorsadvisors and attorneys-in-fact of such Person and its Affiliates, and attorneys in fact (collectively, a “Related PersonsPerson”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, Document or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related Persons Person thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability liability, loss and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Trust Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements12.9).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Issuer shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 12.9 (and Section 7.7) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Samples: Indenture (Infor, Inc.)
Notes Collateral Agent. (a) By their The Trustee and each Holder, by its acceptance of the Notes, hereby acknowledge and agree that the Holders hereby designate Notes Collateral Agent shall hold for the benefit of all current and appoint Wilmington Trustfuture Secured Parties a security interest in the Collateral granted pursuant to the applicable Security Documents.
(b) Each Holder, by its acceptance of the Notes, (i) appoints Computershare Trust Company, National Association to serve act on its behalf as Notes Collateral Agent and as their agent under this Indenture, the Collateral Security Documents, (ii) authorizes and directs the Pari Passu Intercreditor Agreement and Notes Collateral Agent to enter into any Security Documents, including the Second Lien Intercreditor Agreement, if applicableand to perform its obligations and exercise its rights thereunder in accordance therewith, and each of the Holders by acceptance of the Notes and (iii) authorizes the Trustee hereby irrevocably authorizes to direct the Notes Collateral Agent to take such action actions on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of the Security Documents, including for the purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by the Issuer and Guarantors thereunder to secure the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto and (iv) authorizes the Notes Collateral Agent to release any Lien granted to or held by the Notes Collateral Agent upon any Collateral as provided in this Indenture, the Collateral Security Documents, the Pari Passu Intercreditor Agreement and the Second Lien or any other applicable Approved Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust.
(c) The Issuer hereby appoints Computershare Trust Company, National Association hereby agrees (and any co-agents, sub-agents or attorneys-in-fact appointed by the Notes Collateral Agent (and which shall be entitled to the benefit of the provisions of the applicable Security Documents)) to serve as Notes Collateral Agent on behalf of the Secured Parties under the Collateral DocumentsSecurity Documents as provided therein, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indentureprivileges, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, powers and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies immunities as set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor or any other Person, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Security Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to relyNone of the Parent, and shall be fully protected in relyingthe Issuer, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Subsidiary Guarantors or any Grantor), independent accountants and other experts and advisors selected by the of their respective Affiliates may serve as Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable).
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice Trustee and each Holder, by its acceptance of the occurrence of any Default or Event of DefaultNotes, unless a Responsible Officer of (i) authorize the Notes Collateral Agent shall to enter into, or otherwise have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (be subject to this Section 13.09 and the terms of to, the Intercreditor Agreements).
Agreement or any other applicable Approved Intercreditor Agreement (f) The Notes Collateral Agent may resign at and any time by notice amendments, amendments and restatements, restatements or waivers of or supplements to the Trustee or other modifications to, and the Issuerextensions, restructuring, renewals, replacements of, such resignation to be effective agreements) and (ii) acknowledge that each Approved Intercreditor Agreement is (if entered into) binding upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notesthem.
Appears in 1 contract
Samples: Indenture (Endo, Inc.)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Trustee and each of the Holders by acceptance of the Notes hereby designate and appoint the Notes Collateral Agent as its agent under this Indenture, the Security Documents and the Intercreditor Agreement and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes authorize the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, Security Documents and the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicable, and consents consent and agrees agree to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreement and each Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective termsterms and this Indenture. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.091407. The provisions of this Section 13.09 1407 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor or any of the Grantors Company or the Notes Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04herein. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreement and the Collateral Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Security Documents or the Intercreditor Agreement to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or the Company or any other PersonNotes Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, Security Documents and the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct, as determined by a final order of a court of competent jurisdiction) or under or in connection with any Collateral Document, Security Document or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct, as determined by a final order of a court of competent jurisdiction), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Company or any Grantor Notes Guarantor or Affiliate of the Company or any GrantorNotes Guarantor, or any Officer or Related Persons Person thereof, contained in this Indenture, the Security Documents or any other Notes Documentsthe Intercreditor Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable, or for any failure of the Company or any Grantor Notes Guarantor or any other party to this Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor the Company or any Grantor’s Notes Guarantor or any of their respective Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mailemail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Company or any GrantorNotes Guarantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Subject to the provisions of the Security Documents, the Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 Five or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 1407 and the terms provisions of the Intercreditor AgreementsSecurity Documents).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the IssuerCompany, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Company shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction jurisdiction, at the expense of the Company, to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 1407 (and Section 607) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Samples: Indenture (Sanmina Corp)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Trustee and each of the Holders by acceptance of the Notes hereby (i) designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Security Documents and the Trustee hereby Intercreditor Agreement, (ii) irrevocably authorizes the Notes Collateral Agent to execute and deliver the Intercreditor Agreement and the Security Documents (including future Security Documents), to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, Security Documents and the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicable, and (iii) consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreement and each Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as The Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement hereby accepts such designation and the Second Lien Intercreditor Agreement, if applicable, appointment and acknowledges that agrees to act as the Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0411.8. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreement and the Collateral Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. The provisions of this Section 11.8 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor the Company or any Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein.
(b) Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Note Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor the Company or any other PersonGuarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to relyall of the rights, privileges, protections, immunities and shall be fully protected in relyingbenefits granted to the Trustee under this Indenture, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any GrantorSection 7.1(d), independent accountants (e), (f) and other experts (g), Section 7.2 and advisors selected by the Section 7.6. The Notes Collateral AgentAgent may resign or be replaced in accordance with Section 7.13. The Notes Collateral Agent shall not be bound entitled to make any investigation into compensation and indemnity in accordance with Section 7.6.
(d) Notwithstanding anything to the facts or matters stated contrary contained herein, other than in any resolutionthe case of actions expressly contemplated by Clause (b) of Section 11.2, certificatethe Notes Collateral Agent shall solely act pursuant to the instructions of the Holders and the Trustee with respect to the Security Documents and the Collateral. Other than in the case of actions expressly contemplated by Clause (b) of Section 11.2, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The the Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents unless it shall first receive such direction, advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all loss, liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable).
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of Holders. After the occurrence of any Default or an Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject may direct the Notes Collateral Agent in connection with any action required or permitted by this Indenture or the Security Documents. For the avoidance of doubt, the Notes Collateral Agent shall have no discretion under this Indenture, the Intercreditor Agreement or the Security Documents and shall not be required to this Section 13.09 and make or give any determination, consent, approval, request or direction without the terms written direction of the Intercreditor Agreements)Holders of a majority in aggregate principal amount of the then outstanding Notes or the Trustee, as applicable.
(e) The Notes Collateral Agent shall not be liable for any action taken or omitted to be taken by it in connection with this Indenture or the Security Documents or instrument referred to herein or therein, except to the extent that any of the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct.
(f) Notwithstanding anything to the contrary in this Indenture or any other Notes Document, in no event shall the Notes Collateral Agent be responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance of the security interests or Liens intended to be created by this Indenture or the other Note Documents (including without limitation the filing or continuation of any PPSA financing or financing change statements or similar documents or instruments), nor shall the Notes Collateral Agent be responsible for, and the Notes Collateral Agent makes no representation regarding, the validity, effectiveness or priority of any of the Security Documents or the security interests or Liens intended to be created thereby.
(g) Before the Notes Collateral Agent acts or refrains from acting in each case at the request or direction of the Company or the Guarantors, other than in the case of actions expressly contemplated by clause (b) of Section 11.2 (which shall require such documents as are expressly stated therein), it may require an Officer’s Certificate and an Opinion of Counsel, which shall conform to the provisions of Section 12.2. The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion.
(h) Whether or not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as expressly stated in the notice of resignation) any Security Document, the Notes Collateral Agent shall be entitled to petition a court all of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers privileges and duties immunities afforded to it under this Indenture when executing, delivering or performing under any Security Document.
(i) If at any time or times it shall be necessary or prudent in order to conform to any law of any jurisdiction in which any of the retiring NotesCollateral shall be located, or the Notes Collateral Agent shall be advised by counsel, satisfactory to it, that it is reasonably necessary in the interest of the Holders, or the Company (so long as no event of Default shall have occurred and be continuing) or the Holders of a majority of the outstanding Notes shall in writing so request the Notes Collateral Agent, or the Notes Collateral Agent shall deem it desirable for its own protection in the performance of its duties hereunder or under any Security Document, the Notes Collateral Agent, the Company and the Guarantors, as applicable, shall execute and deliver all instruments and agreements necessary or proper to constitute another bank or trust company, or one or more persons approved by the Notes Collateral Agent, in each case, with the consent of the Company, either to act as co-Notes Collateral Agent of all or any of the Collateral, jointly with the Notes Collateral Agent originally named herein or any successor or successors, or to act as separate Notes Collateral Agent or Notes Collateral Agents of any such Collateral. In case an Event of Default shall have occurred and be continuing, the Notes Collateral Agent may act under the foregoing provisions of this Section 11.8(i) without the concurrent consent of the Company or Holders, and the Company and Holders hereby appoint the Notes Collateral Agent as its trustee and attorney to act under this Section 11.8(i) in such case.
Appears in 1 contract
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints, by their acceptance of the Notes, the Notes Collateral Agent as its agent under this Indenture and the Security Documents and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture and the Second Lien Intercreditor Agreement, if applicableSecurity Documents, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture and the Second Lien Intercreditor Agreement, if applicableSecurity Documents, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0412.07. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Indenture and the Collateral Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all HoldersHolders by their acceptance of the Notes. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture and the Second Lien Intercreditor Agreement, if applicableSecurity Documents, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents Security Documents, to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other Persongrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, Indenture and the Collateral Security Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Co-Issuers or any Grantorother grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations Holders.
(if applicable).d) [Reserved]
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Co-Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 12.07) and the terms of the First Lien Intercreditor Agreements)Agreement.
(f) The Notes Collateral Agent may resign at any time by 30 days’ written notice to the Trustee and the IssuerCo-Issuers, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Co-Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Trustee, at the direction of the Holders of a majority of the aggregate principal amount of the Notes Collateral Agent then outstanding, may appoint, after consulting with the Trusteeappoint a successor collateral agent, subject to the consent of the Co-Issuers (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer Co-Issuers pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction jurisdiction, at the Co-Issuers’ expense, to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 12.07 (and Section 7.07 hereof) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Notes Collateral Agent. (a) By their The Issuer and each of the Holders by acceptance of the Notes, Notes hereby designates and appoints the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their its agent under this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicableany, and the Issuer and each of the Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicableany, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicableany, and consents and agrees to the terms of the Pari Passu First Lien Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicableany, and each Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0412.07. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu First Lien Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicableany, and the Collateral Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicableany, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents Security Documents, the First Lien Intercreditor Agreement and the Second Lien Intercreditor Agreement, if any, to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or and the Second Lien Intercreditor Agreement, if applicable any, or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable any, by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable).
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notes
Appears in 1 contract
Samples: Indenture (Avantor, Inc.)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture and the Collateral Documents and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, Indenture and the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, Documents and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, Indenture and the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Document, together with such powers as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09are reasonably incidental thereto. The provisions of this Section 13.09 10.11 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders10.03. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, Indenture and the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a party, responsibilities hereunder nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, Indenture and the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Documents or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. Except as expressly otherwise provided in this Indenture, the Notes Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Notes Collateral Agent is expressly entitled to take or assert under this Indenture, and the Collateral Documents, including the exercise of remedies pursuant to Article 6, and any action so taken or not taken shall be deemed consented to by the Trustee and the Holders.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Notes Collateral Agent or any of its Related Persons respective Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Document or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Company or any Grantor or Affiliate of any Grantor, or any Officer officer or Related Persons Person thereof, contained in this Indenture, or any other Notes DocumentsIndenture, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, or any other Indenture or the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, or any other Indenture or the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, Indenture or the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Documents to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons Affiliates shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, or any other Indenture or the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Documents or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(c) The Notes Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Company, any Guarantor and their Affiliates as though it was not the Notes Collateral Agent hereunder and without notice to or consent of the Trustee. The Trustee and the Holders acknowledge that, pursuant to such activities, the Notes Collateral Agent or its Affiliates may receive information regarding any Grantor or its respective Affiliates (including information that may be subject to confidentiality obligations in favor of, any such Grantor or such Affiliate) and acknowledge that the Notes Collateral Agent shall not be under any obligation to provide such information to the Trustee or the Holders. Nothing herein shall impose or imply any obligation on the part of the Notes Collateral Agent to advance funds.
(d) The Notes Collateral Agent shall be entitled is authorized and directed to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-maili) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation enter into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or (ii) bind the Holders of a majority on the terms as set forth in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” Collateral Documents and (iii) perform and observe its obligations under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable).
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notes
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Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and each of the Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Notes Collateral Agent to take such action on their behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a party, nor shall the authorized and empowered to appoint one or more co-Notes Collateral Agent have Agents as it deems necessary or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor or any other Person, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting partiesappropriate.
(b) The Subject to Section 7.1, neither the Trustee nor the Notes Collateral Agent may perform nor any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its their respective officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not agents will be responsible or liable for the negligence existence, genuineness, value or willful misconduct protection of any receiverCollateral, agentfor the legality, employeeenforceability, attorney-in-fact effectiveness or Related Person that it selects sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the Notes Obligations and Second Priority Obligations for any defect or deficiency as long as to any such selection was made matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens securing the Notes Obligations and Second Priority Obligations or the Security Documents or any delay in good faithdoing so.
(c) None The Notes Collateral Agent will be subject to such directions as may be given it by the Trustee from time to time (as required or permitted by this Indenture); provided that in the event of conflict between directions received pursuant to the Security Documents and directions received hereunder, the Notes Collateral Agent will be subject to directions received pursuant to the Security Documents and the Intercreditor Agreement. Except as directed by the Trustee as required or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken permitted by any of them under or in connection with this Indenture and any other representatives or the transactions contemplated hereby (except pursuant to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Security Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or will not be obligated:
(i) to act upon directions purported to be delivered to it by any other party Person;
(ii) to this Indenture, foreclose upon or otherwise enforce any Lien securing the Collateral Documents, the Pari Passu Intercreditor Agreement Notes Obligations and Second Priority Obligations; or
(iii) to take any other action whatsoever with regard to any or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None all of the Liens securing the Notes Collateral Agent Obligations and Second Priority Obligations, Security Documents or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s AffiliatesCollateral.
(d) The Notes Collateral Agent shall will be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by accountable only for amounts that it to be genuine and correct and to have been signed, sent, or made by actually receives as a result of the proper Person or Persons, and upon advice and statements enforcement of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by Liens securing the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Obligations and Second Priority Obligations or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Security Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable).
(e) The In acting as Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Defaultco-Notes Collateral Agent, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The each co-Notes Collateral Agent shall take such action with respect to such Default or Event may rely upon and enforce each and all of Default as may be requested by the rights, protections, privileges, powers, immunities, indemnities and benefits of the Trustee in accordance with under Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements)VII hereof.
(f) The holders of Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) agree that the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers privileges, protections, immunities, indemnities and duties benefits provided to the Notes Collateral Agent by this Indenture and the Security Documents. Furthermore, each holder of a Note, by accepting such Note, consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Notes Collateral Agent to enter into and perform the Intercreditor Agreement and Security Documents in each of its capacities thereunder.
(g) At all times when the Trustee is not itself the Notes Collateral Agent, the Issuer will deliver to the Trustee copies of all Security Documents delivered to the Notes Collateral Agent and copies of all documents delivered to the Notes Collateral Agent pursuant to this Indenture and the Security Documents.
(h) Notwithstanding anything in this Indenture to the contrary and for the avoidance of doubt, the Notes Collateral Agent and the Trustee shall have no duty to act outside of the retiring NotesUnited States in respect of any Collateral.
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Samples: Indenture (LiveWatch Security, LLC)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Issuer and each of the Holders of each Series of Notes by acceptance of the Notes of such Series, and each beneficial owner of an interest in a Note, hereby designates and appoints the Notes Collateral Agent as its agent under this First Supplemental Indenture, the Collateral Documents and the Trustee First Lien Intercreditor Agreement and the Issuer directs and authorizes and each of the Holders of each Series of Notes by acceptance of the Notes of such Series hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this First Supplemental Indenture, the Collateral Documents, Documents and the Pari Passu First Lien Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this First Supplemental Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second First Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second First Lien Intercreditor Agreement, if applicable, Agreement and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective termsterms or the terms of the Base Indenture. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.097.08. The provisions of this Section 13.09 7.08 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders of such Series of Notes nor any of the Grantors Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04herein. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this First Supplemental Indenture, the Pari Passu Intercreditor Agreement, the Second First Lien Intercreditor Agreement, if applicable, and Agreement and/or the applicable Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all HoldersHolders of such Series of Notes. Notwithstanding any provision to the contrary contained elsewhere in this First Supplemental Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second First Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGuarantor of such Series of Notes, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this First Supplemental Indenture, the Collateral Documents, Documents and the Pari Passu First Lien Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this First Supplemental Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties with respect to each Series of Notes under this First Supplemental Indenture, the Collateral Documents, Documents or the Pari Passu First Lien Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisorsadvisors and attorneys-in-fact of such Person and its Affiliates, and attorneys in fact (collectively, a “Related PersonsPerson”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of Neither the Notes Collateral Agent or nor any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this First Supplemental Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, Document or the Pari Passu First Lien Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Issuer or any Grantor other Guarantor or Affiliate of any GrantorGuarantor, or any Officer or Related Persons Person thereof, contained in this First Supplemental Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this First Supplemental Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second First Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor Guarantor or any other party to this First Supplemental Indenture, the Collateral Documents, Documents or the Pari Passu First Lien Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of Neither the Notes Collateral Agent or nor any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this First Supplemental Indenture, the Collateral Documents, Documents or the Pari Passu First Lien Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor Guarantor or any GrantorGuarantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled (in the absence of bad faith) to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantorother Guarantor), independent accountants and and/or other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Unless otherwise expressly required hereunder or pursuant to any Collateral Document, the Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this First Supplemental Indenture, the Collateral Documents, Documents or the Pari Passu First Lien Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such written advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of such Series of Notes of the Notes of such Series as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified and/or secured to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) such Series of Notes against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected from claims by any Holders of such Series of Notes in acting, or in refraining from acting, under this First Supplemental Indenture, the Collateral Documents, Documents or the Pari Passu First Lien Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) of such Series and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders of such Series of Notes. The Notes Collateral Agent shall be entitled to seek directions, instructions and holders clarifications from any instructing party and is entitled to refrain from acting in the absence of Other Pari Passu Lien Obligations (if applicable)such instructions and/or clarifications. The Notes Collateral Agent will not incur any liability for any action it takes or refrains from taking on such instructions of an instructing party; provided that the Notes Collateral Agent may not be relieved from liabilities for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Issuer referring to this First Supplemental Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 of the Base Indenture or the Holders of a majority in aggregate principal amount of the Notes of such Series (subject to this Section 13.09 and the terms of the Intercreditor Agreements7.08).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementFirst Supplemental Indenture, the Issuers Issuer shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as a Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 7.08 (and Section 7.08 of the Base Indenture) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was a Notes Collateral Agent under this First Supplemental Indenture.
Appears in 1 contract
Notes Collateral Agent. (a1) By their Each of the Company, the Trustee and each Holder by acceptance of the Notes, Notes hereby designates and appoints the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their its agent under this Indenture, the Intercreditor Agreements and the other Notes Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and each of the Holders Company, the Trustee and each Holder by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Agreements and the Second Lien Intercreditor Agreement, if applicable, other Notes Collateral Documents and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Intercreditor Agreements and the other Notes Collateral Documents, including for the Pari Passu Intercreditor Agreement purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by the Second Lien Intercreditor AgreementIssuer and Guarantors thereunder to secure the Notes Obligations, if applicabletogether with such powers and discretion as are reasonably incidental thereto, and consents and agrees to the terms of the Pari Passu each Notes Collateral Document and each Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04715. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreements and the other Notes Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu any Intercreditor Agreement and or any other the Second Lien Intercreditor Agreement, if applicableNotes Collateral Document, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein herein, in the Intercreditor Agreements and in the other Notes Collateral Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor the Company or any other PersonGuarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Agreements or the Second Lien Intercreditor Agreement, if applicable other Notes Collateral Documents or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, custom and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b2) The Notes Collateral Agent may perform any of its duties under this Indenture, the Intercreditor Agreements and the other Notes Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Documents by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c3) None of the Notes Collateral Agent or nor any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with any Notes Collateral Document, the Pari Passu Document or Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Company or any Grantor Guarantor or Affiliate of any GrantorGuarantor, or any Officer or Related Persons Person thereof, contained in this Indenture, the Intercreditor Agreements or any the other Notes Collateral Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Intercreditor Agreements or the other Notes Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Intercreditor Agreements or the Notes Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of the Company, any Grantor Guarantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Agreements or the Second Lien Intercreditor Agreement, if applicable Notes Collateral Documents to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or nor any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Agreements or the Second Lien Intercreditor Agreement, if applicable Notes Collateral Documents or to inspect the properties, books, or records of any Grantor the Company or any Grantor’s Guarantor or any of their respective Affiliates.
(d4) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, writing or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Company or any GrantorGuarantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper such writing or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Agreements or the Second Lien Intercreditor Agreement, if applicable other Notes Collateral Documents unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Agreements or the Second Lien Intercreditor Agreement, if applicable other Notes Collateral Documents in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, Notes (or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agentsuch consent otherwise required under Article IX) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e5) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements715).
(f6) The Notes Collateral Agent may resign at any time by 30 days’ written notice to the Trustee and the IssuerCompany, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Company shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to at the consent direction of the Issuers (which shall not be unreasonably withheld and which shall not be required during Holders of a continuing Event majority of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date aggregate principal amount of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to then outstanding, may appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notesa
Appears in 1 contract
Samples: Indenture (Hertz Corp)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints, by their acceptance of the Notes, the Notes Collateral Agent as its agent under this Indenture and the Security Documents and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture and the Second Lien Intercreditor Agreement, if applicableSecurity Documents, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture and the Second Lien Intercreditor Agreement, if applicableSecurity Documents, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0412.07. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Indenture and the Collateral Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all HoldersHolders by their acceptance of the Notes. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture and the Second Lien Intercreditor Agreement, if applicableSecurity Documents, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents Security Documents, to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other Persongrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, Indenture and the Collateral Security Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantorother grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations Holders.
(if applicable).d) [Reserved]
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 12.07) and the terms of the First Lien Intercreditor Agreements)Agreement.
(f) The Notes Collateral Agent may resign at any time by 30 days’ written notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Issuer shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Trustee, at the direction of the Holders of a majority of the aggregate principal amount of the Notes Collateral Agent then outstanding, may appoint, after consulting with the Trusteeappoint a successor collateral agent, subject to the consent of the Issuers Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction jurisdiction, at the Issuer’s expense, to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 12.07 (and Section 7.07 hereof) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Company and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Collateral Documents and the Trustee Intercreditor Agreements, and the Company and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicable, Agreements and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicableAgreements, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreements and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0418.07. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreements and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicableAgreements, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Collateral Documents and the Intercreditor Agreements to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor the Company or any other PersonNote Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, Documents and the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Agreements or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements by or through receivers, interim receivers, managers, monitors, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, interim receiver, manager, monitor, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement Document or the Second Lien Intercreditor Agreement, if applicable Agreements or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Company or any Grantor other Note Party or Affiliate of any GrantorNote Party, or any Officer or Related Persons Person thereof, contained in this Indenture, the Collateral Documents or any other Notes Documentsthe Intercreditor Agreements, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicableAgreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicableAgreements, or for any failure of any Grantor Note Party or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements or to inspect the properties, books, or records of any Grantor Note Party or any GrantorNote Party’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Company or any Grantorother Note Party), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its reasonable satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements18.07).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the IssuerCompany, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Company shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Trustee, at the direction of the Holders of a majority of the aggregate principal amount of the Notes Collateral Agent then outstanding, may appoint, after consulting with the Trusteeappoint a successor collateral agent, subject to the consent of the Issuers Company (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. The Holders of a majority in aggregate principal amount of the Notes at the time outstanding may at any time remove the Notes Collateral Agent and nominate a successor collateral agent that shall be deemed appointed as successor collateral agent by giving written notice of such removal and appointment to the Company and by delivering notice thereof to the remaining Holders (if any). Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notesor removed Notes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring or removed Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Xxxxxxxxxx Agent’s resignation or removal hereunder, the provisions of this Section 18.07 shall continue to inure to its benefit and the retiring or removed Notes Collateral Agent shall not by reason of such resignation or removal be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and each of the Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Notes Collateral Agent to take such action on their behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a party, nor shall the authorized and empowered to appoint one or more co-Notes Collateral Agent have Agents as it deems necessary or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor or any other Person, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting partiesappropriate.
(b) The Subject to Section 7.01, neither the Trustee nor the Notes Collateral Agent may perform nor any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its their respective officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not agents will be responsible or liable for the negligence existence, genuineness, value or willful misconduct protection of any receiverCollateral, agentfor the legality, employeeenforceability, attorney-in-fact effectiveness or Related Person that it selects sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the Notes Obligations and Other Pari Passu Lien Obligations for any defect or deficiency as long as to any such selection was made matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens securing the Notes Obligations and Other Pari Passu Lien Obligations or the Security Documents or any delay in good faithdoing so.
(c) None The Notes Collateral Agent will be subject to such directions as may be given it by the Trustee from time to time (as required or permitted by this Indenture); provided that in the event of conflict between directions received pursuant to the Security Documents and directions received hereunder, the Notes Collateral Agent will be subject to directions received pursuant to the Security Documents and the Intercreditor Agreements. Except as directed by the Trustee as required or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken permitted by any of them under or in connection with this Indenture and any other representatives or the transactions contemplated hereby (except pursuant to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Security Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under will not be obligated:
(1) to act upon directions purported to be delivered to it by any other Person;
(2) to foreclose upon or in connection with, this Indenture, otherwise enforce any Lien securing the Collateral Documents, the Notes Obligations and Other Pari Passu Intercreditor Agreement Lien Obligations; or
(3) to take any other action whatsoever with regard to any or all of the Second Lien Intercreditor Agreement, if applicable, or Liens securing the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Notes Obligations and Other Pari Passu Intercreditor Agreement Lien Obligations, Security Documents or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s AffiliatesCollateral.
(d) The Notes Collateral Agent shall will be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by accountable only for amounts that it to be genuine and correct and to have been signed, sent, or made by actually receives as a result of the proper Person or Persons, and upon advice and statements enforcement of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by Liens securing the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Obligations and Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Security Documents.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notes
Appears in 1 contract
Samples: Indenture (EP Energy Corp)
Notes Collateral Agent. (a) By their The Issuers and each of the Holders by acceptance of the Notes, Notes hereby designates and appoints each of the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes US Collateral Agent and Notes Canadian Collateral Agent as their its agent under this Indenture, the Collateral Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, and the Issuers and each of the Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes each of the Notes US Collateral Agent and Notes Canadian Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, and consents and agrees to the terms of the Pari Passu First Lien Intercreditor Agreement, the Second Junior Lien Intercreditor Agreement, if applicableany, and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Each of the Notes US Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the Notes Canadian Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0412.07. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu First Lien Intercreditor Agreement, the Second Junior Lien Intercreditor Agreement, if applicableany, and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents Collateral Documents, the First Lien Intercreditor Agreement and the Junior Lien Intercreditor Agreement, if any, to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor the Issuers or any other PersonGuarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, the Pari Passu First Lien Intercreditor Agreement or and the Second Junior Lien Intercreditor Agreement, if applicable any, or otherwise exist exist, against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel of its selection concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal such counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or nor any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence negligence, bad faith or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence negligence, bad faith or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor other Guarantor or Affiliate of any GrantorGuarantor, or any Officer or Related Persons Person thereof, contained in this Indenture, the Collateral Documents, the First Lien Intercreditor Agreement, or any other Notes Documentsthe Junior Lien Intercreditor Agreement, if any, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicableany, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicableany, or for any failure of the Issuers, any Grantor Guarantor or any other party to this Indenture, the Collateral Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or nor any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, or to inspect the properties, books, or records of the Issuers, any Grantor Guarantor or any Grantor’s of their Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Issuers or any GrantorGuarantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its reasonable satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with with, and subject to the provisions of, Article 6 or by the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements12.07).
(f) The Notes Collateral Agent may resign at any time by 30 days’ written notice to the Trustee and the IssuerIssuers, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Trustee, at the direction of the Holders of a majority of the aggregate principal amount of the Notes Collateral Agent then outstanding, may appoint, after consulting with the Trusteeappoint a successor collateral agent, subject to the consent of the Issuers Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer Issuers pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 12.07 (and Section 7.06 hereof) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Samples: Indenture (Cedar Fair L P)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Issuer and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Security Documents, the First Lien Intercreditor Agreement and the Trustee Junior Lien Intercreditor Agreement, if any, and the Issuer and the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, and consents and agrees to the terms of the Pari Passu First Lien Intercreditor Agreement, the Second Junior Lien Intercreditor Agreement, if applicableany, and each Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0411.07. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu First Lien Intercreditor Agreement, the Second Junior Lien Intercreditor Agreement, if applicableany, and the Collateral Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents Security Documents, the First Lien Intercreditor Agreement and the Junior Lien Intercreditor Agreement, if any, to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or and the Second Junior Lien Intercreditor Agreement, if applicable any, or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(ed) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Trust Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes in accordance with Article 6 (subject to this Section 13.09 and the terms of the Intercreditor Agreements11.07).
(fe) The Notes Collateral Agent may resign at any time by 30 days’ written notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Issuer shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Trustee, at the direction of the Holders of a majority of the aggregate principal amount of the Notes Collateral Agent then outstanding, may appoint, after consulting with the Trusteeappoint a successor collateral agent, subject to the consent of the Issuers Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 11.07 (and Section 7.07 hereof) shall continue to inure to its benefit, and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Notes Collateral Agent. (a) By their acceptance Each of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, Issuers and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Security Documents, the First Lien Intercreditor Agreement and the Trustee Junior Lien Intercreditor Agreement, if any, and each of the Issuers and the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, and consents and agrees to the terms of the Pari Passu First Lien Intercreditor Agreement, the Second Junior Lien Intercreditor Agreement, if applicableany, and each Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0411.7. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu First Lien Intercreditor Agreement, the Second Junior Lien Intercreditor Agreement, if applicableany, and the Collateral Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents Security Documents, the First Lien Intercreditor Agreement and the Junior Lien Intercreditor Agreement, if any, to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or and the Second Junior Lien Intercreditor Agreement, if applicable any, or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in fact attorneys-infact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Issuers or any other Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(ed) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes in accordance with Article VI (subject to this Section 13.09 and the terms of the Intercreditor Agreements11.7).
(fe) The Notes Collateral Agent may resign at any time by 30 days’ written notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Trustee, at the direction of the Holders of a majority of the aggregate principal amount of the Notes Collateral Agent then outstanding, may appoint, after consulting with the Trusteeappoint a successor collateral agent, subject to the consent of the Issuers (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer Issuers pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 11.7 (and Section 7.7 hereof) shall continue to inure to its benefit, and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Samples: Indenture (Avis Budget Group, Inc.)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and each of the Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Notes Collateral Agent to take such action on their behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a party, nor shall the authorized and empowered to appoint one or more co-Notes Collateral Agent have Agents as it deems necessary or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor or any other Person, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting partiesappropriate.
(b) The Subject to Section 7.01, neither the Trustee nor the Notes Collateral Agent may perform nor any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its their respective officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not agents will be responsible or liable for the negligence existence, genuineness, value or willful misconduct protection of any receiverCollateral, agentfor the legality, employeeenforceability, attorney-in-fact effectiveness or Related Person that it selects sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the Notes Obligations and Other Pari Passu Obligations for any defect or deficiency as long as to any such selection was made matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens securing the Notes Obligations and Other Pari Passu Obligations or the Security Documents or any delay in good faithdoing so.
(c) None The Notes Collateral Agent will be subject to such directions as may be given it by the Trustee from time to time (as required or permitted by this Indenture); provided that in the event of conflict between directions received pursuant to the Security Documents and directions received hereunder, the Notes Collateral Agent will be subject to directions received pursuant to the Security Documents and the Intercreditor Agreements. Except as directed by the Trustee as required or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken permitted by any of them under or in connection with this Indenture and any other representatives or the transactions contemplated hereby (except pursuant to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Security Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under will not be obligated:
(1) to act upon directions purported to be delivered to it by any other Person;
(2) to foreclose upon or in connection with, this Indenture, otherwise enforce any Lien securing the Collateral Documents, the Notes Obligations and Other Pari Passu Intercreditor Agreement Obligations; or
(3) to take any other action whatsoever with regard to any or all of the Second Lien Intercreditor Agreement, if applicable, or Liens securing the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Notes Obligations and Other Pari Passu Intercreditor Agreement Obligations, Security Documents or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s AffiliatesCollateral.
(d) The Notes Collateral Agent shall will be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by accountable only for amounts that it to be genuine and correct and to have been signed, sent, or made by actually receives as a result of the proper Person or Persons, and upon advice and statements enforcement of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by Liens securing the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Obligations and Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Security Documents.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notes
Appears in 1 contract
Samples: Indenture (EP Energy Corp)
Notes Collateral Agent. (a) By their acceptance of the NotesThe Issuers, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, Guarantors and each of the Holders by acceptance of the Notes hereby designates and appoints Wilmington Trust, National Association, as the Notes Collateral Agent as its agent under this Indenture, the Security Documents, the Equal Priority Intercreditor Agreement and the Trustee Junior Lien Intercreditor Agreement, if any, and the Issuers, the Guarantors and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Security Documents, the Pari Passu Equal Priority Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Security Documents, the Pari Passu Equal Priority Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, and consents and agrees to the terms of the Pari Passu Equal Priority Intercreditor Agreement, the Second Junior Lien Intercreditor Agreement, if applicableany, and each Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0415.07. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu Equal Priority Intercreditor Agreement, the Second Junior Lien Intercreditor Agreement, if applicableany, and the Collateral Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Security Documents, the Pari Passu Equal Priority Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents Security Documents, the Equal Priority Intercreditor Agreement and the Junior Lien Intercreditor Agreement, if any, to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor the Issuers or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Security Documents, the Pari Passu Equal Priority Intercreditor Agreement or and the Second Junior Lien Intercreditor Agreement, if applicable any, or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Security Documents, the Pari Passu Equal Priority Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliatesattorneys, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care. The Notes Collateral Agent shall have no liability for any action taken, or errors in judgment made, in good faith by it or any of its officers, employees or agents, unless it shall have been grossly negligent in ascertaining the pertinent facts.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence willful misconduct or willful misconductnegligence) or under or in connection with any Collateral Security Document, the Pari Passu Equal Priority Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any other Grantor or Affiliate of any Grantor, or any Officer or Related Persons Person thereof, contained in this Indenture, the Security Documents, the Equal Priority Intercreditor Agreement, or any other Notes Documentsthe Junior Lien Intercreditor Agreement, if any, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Security Documents, the Pari Passu Equal Priority Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicableany, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Security Documents, the Pari Passu Equal Priority Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicableany, or for any failure of any Grantor or any other party to this Indenture, the Collateral Security Documents, the Pari Passu Equal Priority Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Security Documents, the Pari Passu Equal Priority Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to conclusively rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Issuers or any other Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. Before the Notes Collateral Agent acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Notes Collateral Agent will not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Notes Collateral Agent may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. The Notes Collateral Agent will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of the Trustee or the Holders of a majority in aggregate principal amount of the Notes unless such Holders have offered, and if requested, provided to the Notes Collateral Agent indemnity or security satisfactory to the Notes Collateral Agent against the losses, liabilities and expenses that might be incurred by it in compliance with such request or direction. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Security Documents, the Pari Passu Equal Priority Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of all the then outstanding Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Security Documents, the Pari Passu Equal Priority Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of all the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of all the then outstanding Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements15.07).
(f) The Notes Collateral Agent may resign at any time by 30 days’ written notice to the Trustee and the IssuerIssuers, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent Trustee, at the direction of the Holders of a majority in aggregate principal amount of all the then outstanding Notes, may appoint, after consulting with the Trusteeappoint a successor collateral agent, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesIssuer
Appears in 1 contract
Notes Collateral Agent. (a) By their Each of the holders by acceptance of the Notes, the Holders and each beneficial owner of an interest in a Note, hereby designate designates and appoint Wilmington Trust, National Association to serve as the Notes Collateral Agent and as their its agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicable, Agreements and each of the Holders holders by acceptance of the Notes Notes, and the Trustee each beneficial owner of an interest in a Note, hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Security Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor AgreementAgreements, if applicableany, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Security Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor AgreementAgreements, if applicableany, and consents and agrees to the terms of the Pari Passu Intercreditor Agreementthis Indenture, the Second Lien Intercreditor Agreement, if applicable, Agreements and each Collateral DocumentSecurity Document (as applicable), as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0410.07. Each Holder holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu Intercreditor Agreement, Agreements or the Second Lien Intercreditor Agreement, if Security Documents (as applicable, and the Collateral Documents), and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holdersholders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if Agreements (as applicable, ) the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Security Documents and/or the Intercreditor Agreements (as applicable) to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Security Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Agreements or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, Security Documents and/or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Agreements (as applicable) by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care. The exculpatory provisions of this Article X shall apply to any such sub-agent and to the Affiliates of the Notes Collateral Agent and any such sub-agent.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken in good faith by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconductmisconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment) or under or in connection with any Collateral Document, the Pari Passu Security Document and/or Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconductmisconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment), or (ii) be responsible in any manner to any of the Trustee or any Holder holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related Persons Person thereof, contained in this Indenture, or any other Notes Documents, the Security Documents and/or the Intercreditor Agreements or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, Security Documents and/or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, Agreements or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, Security Documents and/or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, Agreements or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, Security Documents and/or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Agreements to perform its obligations hereunder or thereunderthereunder (if any). None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, Security Documents and/or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor AgreementAgreements, if applicable any, or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Unless otherwise expressly required hereunder or pursuant to the Security Documents or any Intercreditor Agreement, the Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Security Documents and/or any Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such written advice or concurrence of the Trustee or the Holders holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, Security Documents and/or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Agreements in accordance with a written request, direction, instruction or consent of the Trustee or the Holders holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” and such notice references the Notes, the Issuer and this Indenture. The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 VI or the Holders holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements10.07).
(f) The Notes Collateral Agent under this Indenture may resign at any time by xxxxxx (30) Business Days’ written notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Issuer shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Trustee, at the written direction of the holders of a majority of the aggregate principal amount of the Notes Collateral Agent then outstanding, may appoint, after consulting with the Trusteeappoint a successor collateral agent under this Indenture, subject to the consent of the Issuers Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) 30 days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall include such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be
Appears in 1 contract
Samples: Indenture (Forward Air Corp)
Notes Collateral Agent. (a) By their acceptance of the Notesaccepting a Security, the Holders hereby designate and appoint Wilmington Trust, National Association each Holder shall be deemed to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and each of the Holders by acceptance of the Notes and the Trustee hereby have irrevocably authorizes appointed the Notes Collateral Agent to take such action on their behalf act as its agent under the provisions of this Indenture, the Collateral Security Documents, the Intercreditor Agreement, any Junior Lien Intercreditor Agreement and any Pari Passu Intercreditor and Collateral Agency Agreement and the Second Lien Intercreditor Agreement, if applicable, to have irrevocably authorized and to exercise such powers and perform such duties as are expressly delegated to instructed the Notes Collateral Agent by to (i) enter into the Security Documents and the Intercreditor Agreements to which it is a party, whether executed on or after the Issue Date; (ii) make any representations on behalf of the Holders set forth in the Security Documents and the Intercreditor Agreements; (iii) bind the Holders on the terms of this Indentureas set forth in the Security Documents and the Intercreditor Agreements; (iv) perform the duties and exercise the rights, powers and discretions that are specifically given to it under the Collateral Security Documents, the Pari Passu Intercreditor Agreement or other documents to which it is a party, together with any other incidental rights, powers and discretions; and (ii) execute each document expressed to be executed by the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under on its behalf, whether executed on or after the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the Issue Date. The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0411.09. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreements and the Collateral Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicableAgreements, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Security Documents and the Intercreditor Agreements to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, Security Documents and the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Agreements or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform is authorized and empowered to appoint one or more subagents or co-collateral agents as it deems necessary or appropriate.
(c) The Notes Collateral Agent shall have all the rights and protection provided in the Note Documents as well as the rights and protections afforded to the Trustee in Section 7.01(e) through (g), Section 7.02 and Section 7.06; provided, however, that the Company shall not reimburse any expense or indemnify against any loss, liability or expense incurred by the Notes Collateral Agent through the Notes Collateral Agent’s own willful misconduct or gross negligence or bad faith.
(d) Notwithstanding anything to the contrary in this Indenture or in any Security Document or the Intercreditor Agreements, in no event shall the Notes Collateral Agent, the Trustee, and any of its duties under their respective officers, directors, employees, attorneys or agents be responsible or liable for, nor do they make any representation regarding, the existence, genuineness, value or protection of any Collateral, for the legality, validity, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the Securities or any defect or deficiency as to any such matters (including the filing of continuation or any Uniform Commercial Code financing or continuations statements or similar documents or instruments).
(e) Subject to the Security Documents, except as directed by the Trustee as required or permitted by this Indenture, the Collateral Documents, Holders acknowledge that the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for obligated:
(1) to act upon directions purported to be delivered to it by any other Person;
(2) to foreclose upon or otherwise enforce any Lien securing the negligence Securities; or
(3) to take any other action whatsoever with regard to any or willful misconduct of any receiverall Liens securing the Securities, agent, employee, attorney-in-fact the Security Documents or Related Person that it selects as long as such selection was made in good faiththe Collateral.
(cf) None of the In acting as Notes Collateral Agent Agent, co-collateral agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a finalsub- collateral agent, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into , each co-collateral agent and each sub- collateral agent may rely upon and enforce each and all of the facts rights, powers, immunities, indemnities and benefits of the Trustee under Article 7.
(g) Except for such duties and responsibilities expressly set forth in this Indenture or matters stated in any resolutionunder the Security Documents or Intercreditor Agreements, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The the Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable Agreements unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) Securities and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Except as otherwise provided in this Indenture, the Intercreditor Agreements or the Security Documents, the Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable Agreements in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) Securities and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(eh) The Notes Collateral Agent shall not be deemed to have knowledge or notice of After the occurrence and continuance of any Default or an Event of Default, unless the Trustee, acting at the direction of the Holders of a Responsible Officer majority of the aggregate principal amount of the Securities then outstanding, may direct the Notes Collateral Agent shall have received written notice from the Trustee in connection with any action required or the Issuers referring to permitted by this Indenture, describing such Default the Security Documents or Event of Default and stating that such notice is a “notice of default.” the Intercreditor Agreements. The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes Securities (subject to this Section 13.09 and 11.09), subject to the terms of the Intercreditor Agreements)Security Documents.
(fi) The Notes Collateral Agent may resign at any time by notice to the Trustee and the IssuerCompany, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. The Notes Collateral Agent may be removed by the Company at any time, upon 30 days’ written notice to the Notes Collateral Agent. The Holders of a majority in principal amount of the Securities may remove the Notes Collateral Agent by so notifying the Company and the Notes Collateral Agent in writing and may appoint a successor Notes Collateral Agent. If the Notes Collateral Agent resigns or is removed under this Indenture or Indenture, and such Holders do not reasonably promptly appoint a successor the Pari Passu Intercreditor Agreement, the Issuers Company shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence has accepted such appointment within thirty (30) 30 days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to gave notice of resignation or was removed, the retiring Notes Collateral Agent or the Holders of at least 10% in aggregate principal amount of the Securities may, at their option, appoint a successor Notes Collateral Agent or petition a court of competent jurisdiction to appoint for the appointment of a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring or removed Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation or removal hereunder, the provisions of this Section 11.09 (and Section 7.06) shall continue to inure to its benefit and the retiring or removed Notes Collateral Agent shall not by reason of such resignation or removal be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Samples: Indenture (LSB Industries Inc)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Issuer and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Note Security Documents and the Trustee Intercreditor Agreement and the Issuer and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, Note Security Documents and the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Note Security Documents and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreement and each Collateral Note Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0411.09. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreement and the Collateral Note Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holderssuch Holder. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Note Security Documents and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Note Security Documents and the Intercreditor Agreement to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor the Issuer or any other PersonGuarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, Note Security Documents and the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, Note Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, Note Security Document or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable).
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notesor
Appears in 1 contract
Samples: Indenture (DT Midstream, Inc.)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and each of the Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Notes Collateral Agent to take such action on their behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a party, nor shall the authorized and empowered to appoint one or more co-Notes Collateral Agent have Agents as it deems necessary or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor or any other Person, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting partiesappropriate.
(b) The Subject to Section 7.01, neither the Trustee nor the Notes Collateral Agent may perform nor any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its their respective officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not agents will be responsible or liable for the negligence existence, genuineness, value or willful misconduct protection of any receiverCollateral, agentfor the legality, employeeenforceability, attorney-in-fact effectiveness or Related Person that it selects sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the Notes Obligations and Other Pari Passu Lien Obligations for any defect or deficiency as long as to any such selection was made matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens securing the Notes Obligations and Other Pari Passu Lien Obligations or the Security Documents or any delay in good faithdoing so.
(c) None The Notes Collateral Agent will be subject to such directions as may be given it by the Trustee from time to time (as required or permitted by this Indenture); provided that in the event of conflict between directions received pursuant to the Security Documents and directions received hereunder, the Notes Collateral Agent will be subject to directions received pursuant to the Security Documents and the Intercreditor Agreements. Except as directed by the Trustee as required or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken permitted by any of them under or in connection with this Indenture and any other representatives or the transactions contemplated hereby (except pursuant to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Security Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under will not be obligated:
(1) to act upon directions purported to be delivered to it by any other Person;
(2) to foreclose upon or in connection with, this Indenture, otherwise enforce any Lien securing the Collateral Documents, the Notes Obligations and Other Pari Passu Intercreditor Agreement Lien Obligations; or
(3) to take any other action whatsoever with regard to any or all of the Second Lien Intercreditor Agreement, if applicable, or Liens securing the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Notes Obligations and Other Pari Passu Intercreditor Agreement Lien Obligations, Security Documents or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s AffiliatesCollateral.
(d) The Notes Collateral Agent shall will be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by accountable only for amounts that it to be genuine and correct and to have been signed, sent, or made by actually receives as a result of the proper Person or Persons, and upon advice and statements enforcement of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by Liens securing the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Obligations and Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Security Documents.
(e) The In acting as Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Defaultco-Notes Collateral Agent, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The each co-Notes Collateral Agent shall take such action with respect to such Default or Event may rely upon and enforce each and all of Default as may be requested by the rights, protections, privileges, powers, immunities, indemnities and benefits of the Trustee in accordance with under Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements).VII hereof
(f) The holders of Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) agree that the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers privileges, protections, immunities, indemnities and duties benefits provided to the Notes Collateral Agent by this Indenture and the Security Documents. Furthermore, each holder of a Note, by accepting such Note, consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Notes Collateral Agent to enter into and perform each Intercreditor Agreement and Security Documents in each of its capacities thereunder.
(g) If the Issuers (i) Incur First-Priority Lien Obligations at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting First-Priority Lien Obligations entitled to the benefit of an existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officers’ Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the applicable existing Intercreditor Agreements) in favor of a designated agent or representative for the holders of the retiring NotesFirst-Priority Lien Obligations so Incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the holders on the terms set forth therein and perform and observe its obligations thereunder. If the Issuers (i) Incur Other Pari Passu Lien Obligations at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting Other Pari Passu Lien Obligations entitled to the benefit of an existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officers’ Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the applicable existing Intercreditor Agreement) in favor of a designated agent or representative for the holders of the Other Pari Passu Lien Obligations so Incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the holders on the terms set forth therein and perform and observe its obligations thereunder. If the Issuers (i) Incur Junior Lien Obligations at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting Junior Lien Obligations entitled to the benefit of an existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officers’ Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the applicable existing Intercreditor Agreement) in favor of a designated agent or representative for the holders of the Junior Lien Obligations so Incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the holders on the terms set forth therein and perform and observe its obligations thereunder.
(h) At all times when the Trustee is not itself the Notes Collateral Agent, the Issuers will deliver to the Trustee copies of all Security Documents delivered to the Notes Collateral Agent and copies of all documents delivered to the Notes Collateral Agent pursuant to this Indenture and the Security Documents.
(i) Notwithstanding anything in this Indenture to the contrary and for the avoidance of doubt, the Notes Collateral Agent and the Trustee shall have no duty to act outside of the United States of America in respect of any Collateral.
Appears in 1 contract
Samples: Indenture (EP Energy Corp)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Collateral Documents and the Intercreditor Agreement and the Trustee and each of the Holders, by acceptance of the Notes, hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, Documents and the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Document, together with such powers as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09are reasonably incidental thereto. The provisions of this Section 13.09 13.11 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders Holders, the Issuer nor any of the Grantors Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders13.03. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a partyresponsibilities hereunder, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGuarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, Documents and the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The . Except as expressly otherwise provided in this Indenture, the Notes Collateral Agent shall have and may perform use its sole discretion with respect to exercising or refraining from exercising any of its duties discretionary rights or taking or refraining from taking any actions which the Notes Collateral Agent is expressly entitled to take or assert under this Indenture, the Collateral Documents, Documents and the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its officers, directors, Affiliates, employees, agents, advisorsincluding the exercise of remedies pursuant to Article 6, and attorneys in fact (collectively, “Related Persons”) and any action so taken or not taken shall be entitled deemed consented to advice of counsel concerning all matters pertaining to such duties, by the Trustee and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithHolders.
(cb) None of the Notes Collateral Agent or any of its Related Persons Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, Document or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Issuer or any Grantor Guarantor, or any officer or Affiliate of any Grantor, or any Officer or Related Persons thereofof the foregoing, contained in this Indenture, or any other Notes DocumentsIndenture, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this or any other Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this or any other Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable, or for any failure of the Issuer, any Grantor Guarantor or any other party to this Indenture, the Collateral Documents, Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons Affiliates shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this or any other Indenture, the Collateral Documents, Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of the Issuer, any Grantor Guarantor or any GrantorGuarantor’s Affiliates.
(c) The Notes Collateral Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Issuer, any Guarantor and their Affiliates as though it was not the Notes Collateral Agent hereunder and without notice to or consent of the Trustee. The Trustee and the Holders acknowledge that, pursuant to such activities, the Notes Collateral Agent or its Affiliates may receive information regarding the Issuer, any Guarantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Issuer, any such Guarantor or such Affiliate) and acknowledge that the Notes Collateral Agent shall not be under any obligation to provide such information to the Trustee or the Holders. Nothing herein shall impose or imply any obligation on the part of the Notes Collateral Agent to advance funds.
(d) The Notes Collateral Agent is authorized and directed to (i) enter into the Collateral Documents, (ii) enter into the Intercreditor Agreement, (iii) bind the Holders on the terms as set forth in the Collateral Documents and the Intercreditor Agreement and (iv) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreement.
(e) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Notes Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Notes Collateral Agent in excess of the amount required to be entitled paid to relythe Trustee pursuant to Article 6, the Trustee shall promptly turn the same over to the Notes Collateral Agent, in kind, and shall with such endorsements as may be fully protected required to negotiate the same to the Notes Collateral Agent.
(f) The Trustee is each Holder’s agent for the purpose of perfecting the Holders’ security interest in relyingassets which, in accordance with Article 9 of the Uniform Commercial Code, can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon request from the Issuer, the Trustee shall notify the Notes Collateral Agent thereof, and, promptly upon the Notes Collateral Agent’s written request therefor shall deliver such Collateral to the Notes Collateral Agent or otherwise deal with such Collateral in accordance with the Notes Collateral Agent’s instructions.
(g) The Notes Collateral Agent shall have no obligation whatsoever to the Trustee or any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, of the Holders to assure that the Collateral exists or other communication, document or conversation (including those is owned by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantor)Guarantor or is cared for, independent accountants protected, or insured or has been encumbered, or that the Notes Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Issuer or any Guarantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Notes Collateral Agent pursuant to this Indenture, any Collateral Document or the Intercreditor Agreement, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Notes Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Notes Collateral Agent’s own interest in the Collateral and that the Notes Collateral Agent shall have no other experts duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(h) No provision of this Indenture, the Intercreditor Agreement or any Collateral Document shall require the Notes Collateral Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Holders (or the Trustee in the case of the Notes Collateral Agent) if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.
(i) The Notes Collateral Agent (i) shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers, or for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Notes Collateral Agent was grossly negligent in ascertaining the pertinent facts, (ii) shall not be liable for interest on any money received by it except as the Notes Collateral Agent may agree in writing with the Issuer (and advisors selected money held in trust by the Notes Collateral AgentAgent need not be segregated from other funds except to the extent required by law), (iii) the Notes Collateral Agent may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Notes Collateral Agent shall not be bound construed to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing impose duties to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)act.
(ej) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of Neither the Notes Collateral Agent shall have received written notice from nor the Trustee shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the Issuers referring to this Indenturefact, describing such Default fire, communication line failures, computer viruses, power failures, earthquakes or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agentother disasters. If Neither the Notes Collateral Agent resigns under this Indenture nor the Trustee shall be liable for any indirect, special or the Pari Passu Intercreditor Agreementconsequential damages (including but not limited to lost profits) whatsoever, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date even if it has been informed of the resignation likelihood thereof and regardless of the Notes Collateral Agent (as stated in the notice form of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notesaction.
Appears in 1 contract
Samples: Senior Secured Notes Indenture (Cambium Learning Group, Inc.)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Company and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Security Documents and Intercreditor Agreements, and the Trustee Company and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicable, Agreements and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicableAgreements, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreements and each Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreements and the Collateral Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicableAgreements, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Security Documents and the Intercreditor Agreements to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, Security Documents and the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Agreements or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable Agreements by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement Security Document or the Second Lien Intercreditor Agreement, if applicable Agreements or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Company or any other Grantor or Affiliate of any Grantor, or any Officer or Related Persons Person thereof, contained in this Indenture, the Security Documents or any other Notes Documentsthe Intercreditor Agreements, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicableAgreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicableAgreements, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable Agreements to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable Agreements or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Company or any other Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable Agreements unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its reasonable satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable Agreements in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take only such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 Six or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements13.09).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the IssuerCompany, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Company shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Trustee, at the direction of the Holders of a majority of the aggregate principal amount of the Notes Collateral Agent then outstanding, may appoint, after consulting with the Trusteeappoint a successor collateral agent, subject to the consent of the Issuers Company (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 13.09 shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Company and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Security Documents, the First Lien Intercreditor Agreement and the Trustee Junior Lien Intercreditor Agreement, if any, and the Company and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, and consents and agrees to the terms of the Pari Passu First Lien Intercreditor Agreement, the Second Junior Lien Intercreditor Agreement, if applicableany, and each Collateral Security Document, as the same may be in effect or may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0413.8. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu First Lien Intercreditor Agreement, the Second Junior Lien Intercreditor Agreement, if applicableany, and the Collateral Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents Security Documents, the First Lien Intercreditor Agreement and the Junior Lien Intercreditor Agreement, if any, to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or and the Second Junior Lien Intercreditor Agreement, if applicable any, or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Company or any other Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, judgment, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations Holders.
(if applicable)d) [Reserved].
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Trust Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements13.8).
(f) The Notes Collateral Agent may resign at any time by 30 days’ written notice to the Trustee and the IssuerCompany, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Holdings shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Trustee, at the direction of the Holders of a majority of the aggregate principal amount of the Notes Collateral Agent then outstanding, may appoint, after consulting with the Trusteeappoint a successor collateral agent, subject to the consent of the Issuers Holdings (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer Holdings pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) ), the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 13.8 (and Section 7.6 hereof) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Samples: Indenture (Wayfair Inc.)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Issuer and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Notes Collateral Documents and each Intercreditor Agreement, and the Trustee Issuer and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Notes Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien each Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Notes Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien each Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu each Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreement and each Notes Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0412.7. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu each Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreement and the Notes Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Notes Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien each Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Collateral Documents and each Intercreditor Agreement, to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Notes Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Documents and each Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Notes Collateral Documents, the Pari Passu Intercreditor Agreement, any Acceptable Intercreditor Agreement or the Second Lien ABL-Notes Intercreditor Agreement, if applicable Agreement by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Notes Collateral Documents, the Pari Passu Intercreditor Agreement, any Acceptable Intercreditor Agreement or the Second Lien ABL-Notes Intercreditor Agreement, if applicable Agreement unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Notes Collateral DocumentsDocument, the Pari Passu Intercreditor Agreement, any Acceptable Intercreditor Agreement or the Second Lien ABL-Notes Intercreditor Agreement, if applicable Agreement in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations Holders.
(if applicable).d) [Reserved]
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Trust Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements12.7).
(f) The Notes Collateral Agent may resign at any time by 30 days’ written notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Issuer shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Trustee, at the direction of the Holders of a majority of the aggregate principal amount of the Notes Collateral Agent then outstanding, may appoint, after consulting with the Trusteeappoint a successor collateral agent, subject to the consent of the Issuers Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. If the Notes Collateral Agent consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor Notes Collateral Agent. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 12.7 (and Section 7.7 hereof) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Samples: Indenture (CPI Card Group Inc.)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Issuer and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Notes Collateral Documents and the Trustee Intercreditor Agreement, and the Issuer and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Notes Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Notes Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreement and each Notes Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0412.7. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreement and the Notes Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Notes Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Collateral Documents and the Intercreditor Agreement, to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Notes Collateral Documents, Documents and the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Notes Collateral Documents, Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable).
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notes
Appears in 1 contract
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Security Documents and the Intercreditor Agreement and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, Security Documents and the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Document, together with such powers as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective termsare reasonably incidental thereto. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.0911.11. The provisions of this Section 13.09 11.11 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders11.03. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a partyherein, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, Security Documents and the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. Except as expressly otherwise provided in this Indenture, the Notes Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Notes Collateral Agent is expressly entitled to take or assert under this Indenture, the Security Documents and the Intercreditor Agreement, including the exercise of remedies pursuant to Article VI, and any action so taken or not taken shall be deemed consented to by the Trustee and the Holders.
(b) The Notes Collateral Agent may perform execute any of its duties under this Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) Persons and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the gross negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithwithout gross negligence or willful misconduct.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Security Document or Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Company or any Grantor or Affiliate of any Grantor, or any Officer officer or Related Persons Person thereof, contained in this Indenture, or any other Notes DocumentsIndenture, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this or any other Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this or any other Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this or any other Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certificationtelex, or telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this or any other Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this or any other Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction request or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers a Grantor referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of 6; provided, however, that unless and until the Notes Collateral Agent has received any such request, the Notes Collateral Agent may (subject but shall not be obligated to) take such action, or refrain from taking such action, with respect to this Section 13.09 and the terms such Default or Event of the Intercreditor Agreements)Default as it shall deem advisable.
(f) Xxxxx Fargo Bank, National Association and its respective Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with any Grantor and its Affiliates as though it was not the Notes Collateral Agent hereunder and without notice to or consent of the Trustee. The Trustee and the Holders acknowledge that, pursuant to such activities, Xxxxx Fargo Bank, National Association or its respective Affiliates may receive information regarding any Grantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of any such Grantor or such Affiliate) and acknowledge that the Notes Collateral Agent shall not be under any obligation to provide such information to the Trustee or the Holders.
(g) The Notes Collateral Agent may resign at any time by upon thirty (30) days prior written notice to the Trustee and the IssuerGrantors, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Trustee, subject to the consent of the Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation)Agent, the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term
Appears in 1 contract
Notes Collateral Agent. (a) By their acceptance Each of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Issuer and the Second Lien Intercreditor Agreement, if applicable, Co-Issuer and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Collateral Documents and the Trustee Intercreditor Agreement, and each of the Issuer and the Co-Issuer and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreement and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0412.7. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreement and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Collateral Documents and the Intercreditor Agreement, to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, Documents and the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable lawLaw. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, Document or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations Holders.
(if applicable).d) [Reserved]
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Trust Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements12.7).
(f) The Notes Collateral Agent may resign at any time by 30 days’ written notice to the Trustee and the IssuerIssuers, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Issuer shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Trustee, at the direction of the Holders of a majority of the aggregate principal amount of the Notes Collateral Agent then outstanding, may appoint, after consulting with the Trusteeappoint a successor collateral agent, subject to the consent of the Issuers Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. If the Notes Collateral Agent consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor Notes Collateral Agent. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 12.7 (and Section 7.7) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, U.S. Bank National Association to serve as is hereby appointed Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and each of the Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Notes Collateral Agent to take such action on their behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated Agent. Subject to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The applicable provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none Documents, each Holder, by acceptance of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04. Each Holder its Note(s) agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, the duties of (1) the Notes Collateral Agent shall execute and deliver the Notes Collateral Documents and act in accordance with the terms thereof, (2) the Notes Collateral Agent may, upon the instruction, or with the consent, of the Trustee or the Holders, take all actions it deems necessary or appropriate in order to (i) enforce any of the terms of the Notes Collateral Documents and (ii) collect and receive any and all amounts payable in respect of the Obligations of the Issuer and the Subsidiary Guarantors hereunder and under the Notes, the Note Guarantees and the Notes Collateral Documents and (3) to the extent permitted by this Indenture, the Notes Collateral Agent shall have power to institute and to maintain such suits and proceedings upon the instruction of the Trustee to prevent any impairment of the Collateral by any act that may be ministerial and administrative unlawful or in natureviolation of the Notes Collateral Documents or this Indenture, and suits and proceedings upon the instruction of the Trustee to preserve or protect its interests and the interests of the Trustee and the Holders in the Collateral (including the power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest thereunder or be prejudicial to the interests of the Notes Collateral Agent, the Holders or the Trustee). Notwithstanding the foregoing, the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor or any other Person, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing obligated to take any such action under this Indenture, without the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence direction of the Trustee or Holders and may, at the expense of the Issuer, request the direction of the Holders with respect to any such actions and upon receipt of the written consent of the Holders of a majority in aggregate principal amount of the outstanding Notes, shall take such actions; provided that all actions so taken shall, at all times, be in conformity with the requirements of the First Lien Intercreditor Agreement.
(b) Subject to the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstandingCollateral Documents, the “Applicable Authorized Representative” Trustee shall direct the Notes Collateral Agent from time to time. Subject to the Notes Collateral Documents, except as directed by the Trustee as required or permitted by this Indenture, the Holders acknowledge that the Notes Collateral Agent shall not be obligated:
(1) to act upon directions purported to be delivered to it by any other Person;
(2) to foreclose upon or otherwise enforce the Liens securing any First Lien Obligations; or
(3) to take any other action whatsoever with regard to any or all of the First Lien Obligations, the Notes Collateral Documents or the Collateral.
(c) The rights, privileges, protections, immunities and benefits given to the Trustee under the Pari Passu Intercreditor Agreement (if this Indenture, including, without limitation, its right to be indemnified and compensated and all other than rights, privileges, protections, immunities and benefits set forth in Sections 7.01, 7.02 and 7.06, are extended to the Notes Collateral Agent) and, and its agents and attorneys, and shall be enforceable by, the Notes Collateral Agent, as if fully set forth in this Section 10.02 with respect to the Notes Collateral Agent. The Notes Collateral Agent will not be required to advance or expend any funds or otherwise incur any financial liability in the performance of its duties or the exercise of its powers or rights hereunder unless it so requests, has been provided with security or indemnity satisfactory to it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and or expense which may be incurred by it by reason of taking or continuing to take any such action.
(d) Beyond the exercise of reasonable care in the custody of Collateral in its possession, the Notes Collateral Agent will have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Notes Collateral Agent will not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any Liens on the Collateral. The Notes Collateral Agent shall will be deemed to have exercised reasonable care in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the custody of the Collateral Documentsin its possession if the Collateral is accorded treatment substantially equal to that which it accords property held by it as a Notes Collateral Agent or any similar arrangement, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than and the Notes Collateral Agent) and such request and Agent will not be liable or responsible for any action taken loss or failure to act pursuant thereto shall be binding upon all diminution in the value of any of the Holders and holders Collateral by reason of Other Pari Passu Lien Obligations (if applicable)the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Notes Collateral Agent in good faith.
(e) The Notes Collateral Agent shall will not be deemed to have knowledge responsible for the existence, genuineness or notice value of any of the occurrence Collateral or for the validity, perfection, priority or enforceability of the Liens on any of the Collateral, whether impaired by operation of law or by reason of any Default action or Event of Defaultomission to act on its part hereunder, unless a Responsible Officer except to the extent such action or omission constitutes gross negligence, bad faith or willful misconduct on the part of the Notes Collateral Agent shall have received written notice from Agent, for the Trustee validity or sufficiency of the Issuers referring Collateral or any agreement or assignment contained therein, for the validity of the title, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to this Indenture, describing such Default or Event the maintenance of Default and stating that such notice is a “notice of default.” the Collateral. The Notes Collateral Agent shall take such action with respect hereby disclaims any representation or warranty to such Default or Event of Default as may be requested by any party, including the Trustee in accordance with Article 6 or present and future Holders concerning the Holders of a majority in aggregate principal amount perfection of the Notes (subject to this Section 13.09 and Liens granted hereunder or in the terms value of any of the Intercreditor Agreements)Collateral.
(f) The Notes Collateral Agent may resign at shall not be required to acquire title to an asset for any time by notice reason and shall not be required to carry out any fiduciary or trust obligation for the Trustee and the Issuer, such resignation to be effective upon the acceptance benefit of a successor agent to its appointment as another. The Notes Collateral AgentAgent is not a fiduciary and shall not be deemed to have assumed any fiduciary obligation. If the Notes Collateral Agent resigns under this Indenture in its sole discretion believes that any obligation to take or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior omit to the intended effective date of the resignation of take any action may cause the Notes Collateral Agent (as stated in to be considered an “owner or operator” under any environmental laws or otherwise cause the notice of resignation)Notes Collateral Agent to incur, or be exposed to, any environmental liability or any liability under any other federal, state or local law, the Notes Collateral Agent may appointreserves the right, after consulting with instead of taking such action, either to resign as Notes Collateral Agent or to arrange for the Trustee, subject to the consent transfer of the Issuers (which shall title or control of the asset to a court appointed receiver. The Notes Collateral Agent will not be unreasonably withheld and which shall not be required during a continuing Event liable to any Person for any environmental liability or any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to petition a court any kind of competent jurisdiction to appoint a successor. Upon discharge or release or threatened discharge or release of any hazardous materials into the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notesenvironment.
Appears in 1 contract
Samples: Indenture (WESTMORELAND COAL Co)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Company and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Security Documents and the Trustee Intercreditor Agreements and the Company and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicable, Agreements and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicable, Agreements and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreements and each Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.049.07 . Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreements and the Collateral Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicableAgreements, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Security Documents and the Intercreditor Agreements to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, Security Documents and the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Agreements or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable Agreements by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Company or any other Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable Agreements unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable Agreements in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations Holders.
(if applicable).d) [Reserved]
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements9.07).
(f) The Notes Collateral Agent may resign at any time by 30 days’ written notice to the Trustee and the IssuerCompany, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Company shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Trustee, at the direction of the Holders of a majority of the aggregate principal amount of the Notes Collateral Agent then outstanding, may appoint, after consulting with the Trusteeappoint a successor collateral agent, subject to the consent of the Issuers Company (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 9.07 (and Section 7.06 hereof) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Samples: Indenture (Avaya Holdings Corp.)
Notes Collateral Agent. (a) By their The Issuer and each of the Holders by acceptance of the Notes, Notes hereby designates and appoints the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their its agent under this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicableany, and the Issuer and each of the Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicableany, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicableany, and consents and agrees to the terms of the Pari Passu First Lien Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicableany, and each Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0412.07. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu First Lien Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicableany, and the Collateral Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicableany, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents Security Documents, the First Lien Intercreditor Agreement and the Second Lien Intercreditor Agreement, if any, to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or and the Second Lien Intercreditor Agreement, if applicable any, or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable any, by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Table of Contents Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with any Collateral Security Document, the Pari Passu First Lien Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable any, or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related Persons Person thereof, contained in this Indenture, the Security Documents, the First Lien Intercreditor Agreement, or any other Notes Documentsthe Second Lien Intercreditor Agreement, if any, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicableany, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicableany, or for any failure of any Grantor or any other party to this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable any, to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable any, or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable).
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notes
Appears in 1 contract
Samples: Indenture (Avantor, Inc.)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Issuer and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Note Security Documents and the Trustee Intercreditor Agreement and the Issuer and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, Note Security Documents and the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Note Security Documents and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreement and each Collateral Note Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0411.09. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreement and the Collateral Note Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holderssuch Holder. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Note Security Documents and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Note Security Documents and the Intercreditor Agreement to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor the Issuer or any other PersonGuarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, Note Security Documents and the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, Note Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, Note Security Document or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, Issuer or the Issuers Guarantors or any Grantor or Affiliate of any Grantortheir respective Affiliates, or any Officer or Related Persons Person thereof, contained in this Indenture, the Note Security Documents or any other Notes Documentsthe Intercreditor Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Note Security Documents or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Note Security Documents or the Second Lien Intercreditor Agreement, if applicable, or for any failure of the Issuer or any Grantor Guarantor or any other party to this Indenture, the Collateral Documents, Note Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, Note Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor the Issuer or any Grantor’s Guarantor or any of their respective Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any GrantorGuarantor), independent accountants and other experts and advisors selected by the Issuer, any Guarantor or the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, Note Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified offered security or indemnity to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) such Notes against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, Note Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)such Notes.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 11.09, the Note Security Documents and the terms of the Intercreditor AgreementsAgreement).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Issuer shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to at the consent direction of the Issuers (which shall not be unreasonably withheld and which shall not be required during Holders of a continuing Event majority of Default)the aggregate principal amount of the Notes then outstanding, may appoint a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” means U.S. Bank Trust Company, National Association, as collateral agent for the Holders of the Notes and any successor pursuant to the provisions of this Indenture and the Note Security Documents. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 11.09 (and Section 7.07) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Samples: Indenture (DT Midstream, Inc.)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Junior Priority Intercreditor Agreement, if applicable, and each of the Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Notes Collateral Agent to take such action on their behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Junior Priority Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Junior Priority Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Junior Priority Intercreditor Agreement, if applicable, and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicable, Agreements and acknowledges that the Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Junior Priority Intercreditor Agreement, if applicable, and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and or the Second Lien Junior Priority Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Note Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor or any other Person, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Junior Priority Intercreditor Agreement, if applicable applicable, or shall otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Junior Priority Intercreditor Agreement, if applicable applicable, by or through receiversits or its Affiliates, agentsand the respective officers, directors, employees, and attorneys-in-fact of the Notes Collateral Agent and its Affiliates (any such Affiliate, officer, director, employee or through its officersattorney-in-fact, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, a “Related PersonsPerson”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counselcounsel to the Issuer or the Notes Collateral Agent. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, employee or attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Junior Priority Intercreditor Agreement, if applicable applicable, or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Issuer or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Note Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Junior Priority Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Junior Priority Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Junior Priority Intercreditor Agreement, if applicable applicable, to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Junior Priority Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. Before the Notes Collateral Agent acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Notes Collateral Agent will not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Notes Collateral Agent may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. The Notes Collateral Agent will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of the Trustee or the Holders of a majority in aggregate principal amount of the Notes, or the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) unless such Holders have offered, and if requested, provided to the Notes Collateral Agent indemnity or security satisfactory to the Notes Collateral Agent against the losses, liabilities and expenses that might be incurred by it in compliance with such request or direction. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, judgment, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Junior Priority Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable).
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers Issuer shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” or “Collateral Agent” (as applicable) in the Note Documents shall mean such successor notes collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 13.09 (and Section 7.07) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture, the Collateral Documents, or the Intercreditor Agreements. If the Notes Collateral Agent consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Notes Collateral Agent.
Appears in 1 contract
Samples: Indenture (Cushman & Wakefield PLC)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Pledge and Security Agreement, the Security Documents and the Intercreditor Agreement and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral DocumentsPledge and Security Agreement, the Pari Passu Security Documents and the Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral DocumentsPledge and Security Agreement, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Pledge and Security Agreement and each Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.0911.09. The provisions of this Section 13.09 11.9 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0411.03. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Pledge and Security Agreement and the Collateral Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral DocumentsPledge and Security Agreement, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral DocumentsPledge and Security Agreement, the Pari Passu Security Documents and the Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) Persons and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with the Pledge and Security Agreement, any Collateral Document, the Pari Passu Security Document or Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Company or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons Person thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral DocumentsPledge and Security Agreement, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral DocumentsPledge and Security Agreement, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral DocumentsPledge and Security Agreement, the Pari Passu Security Documents or the Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral DocumentsPledge and Security Agreement, the Pari Passu Security Documents or the Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Company or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements11.09).
(f) U.S. Bank National Association and its respective Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with any Grantor and its Affiliates as though it was not the Notes Collateral Agent hereunder and without notice to or consent of the Trustee. The Trustee and the Holders acknowledge that, pursuant to such activities, U.S. Bank National Association or its respective Affiliates may receive information regarding any Grantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of any such Grantor or such Affiliate) and acknowledge that the Notes Collateral Agent shall not be under any obligation to provide such information to the Trustee or the Holders. Nothing herein shall impose or imply any obligation on the part of the U.S. Bank National Association to advance funds.
(g) The Notes Collateral Agent may resign at any time by notice to the Trustee and the IssuerCompany, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Company shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor notes collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 11.9 (and Section 7.07) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Samples: Indenture (Georgia Gulf Corp /De/)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Notes Collateral Documents, the Pari Passu ABL Intercreditor Agreement and the Second Lien Pari Passu Intercreditor Agreement, if applicable, and each of the Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Notes Collateral Agent to take such action on their behalf under the provisions of this Indenture, the Notes Collateral Documents, the Pari Passu ABL Intercreditor Agreement and the Second Lien Pari Passu Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Notes Collateral Documents, the Pari Passu ABL Intercreditor Agreement and the Second Lien Pari Passu Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu ABL Intercreditor Agreement, the Second Lien Pari Passu Intercreditor Agreement, if applicable, Agreement and each Notes Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective termsterms and in accordance with Article 9 hereof. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Notes Collateral Documents, the ABL Intercreditor Agreement and the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and the Notes Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Notes Collateral Documents, the Pari Passu ABL Intercreditor Agreement and the Second Lien Pari Passu Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor or any other Person, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Notes Collateral Documents, the ABL Intercreditor Agreement or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Notes Collateral Documents, the ABL Intercreditor Agreement or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, employees or attorneys-in-fact or through its officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, employee or attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the The Notes Collateral Agent or any of its Related Persons shall not (i) be liable for any action taken or omitted to be taken by any of them it under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Notes Collateral Document, the ABL Intercreditor Agreement or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Issuer or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Notes Collateral Documents, the Pari Passu ABL Intercreditor Agreement or the Second Lien Pari Passu Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Notes Collateral Documents, the Pari Passu ABL Intercreditor Agreement or the Second Lien Pari Passu Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Notes Collateral Documents, the ABL Intercreditor Agreement or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the The Notes Collateral Agent or any of its respective Related Persons shall not be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Notes Collateral Documents, the ABL Intercreditor Agreement or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, judgment, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Notes Collateral Documents, the ABL Intercreditor Agreement or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral AgentAgent (the “Applicable Authorized Representative”)) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Notes Collateral Documents, the ABL Intercreditor Agreement or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable).
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers Issuer shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) 30 days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” or “Collateral Agent” (as applicable) in the Notes Documents shall mean such successor notes collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 13.09 (and Section 7.07) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture or the Intercreditor Agreements. If the Notes Collateral Agent consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Notes Collateral Agent.
Appears in 1 contract
Samples: Indenture (JELD-WEN Holding, Inc.)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Security Agreement, the Security Documents and the Intercreditor Agreement and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Security Documents and the Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Security Agreement and each Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.0910.11. The provisions of this Section 13.09 10.11 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0410.03. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Security Agreement and the Collateral Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Security Documents and the Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) Persons and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the gross negligence or willful misconduct of any Notes co-Collateral Agent appointed pursuant to Section 10.11(h), receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with the Security Agreement, any Collateral Document, the Pari Passu Security Document or Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Issuer or any Grantor or Affiliate of any Grantor, or any Officer officer or Related Persons Person thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Security Documents or the Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Security Documents or the Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this or any other Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this or any other Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer responsible officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements10.11).
(f) Wilmington Trust, National Association and its respective Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with any Grantor and its Affiliates as though it was not the Notes Collateral Agent hereunder and without notice to or consent of the Trustee. The Trustee and the Holders acknowledge that, pursuant to such activities, Wilmington Trust, National Association or its respective Affiliates may receive information regarding any Grantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of any such Grantor or such Affiliate) and acknowledge that the Notes Collateral Agent shall not be under any obligation to provide such information to the Trustee or the Holders. Nothing herein shall impose or imply any obligation on the part of the Wilmington Trust, National Association to advance funds.
(g) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Issuer shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 10.11 (and Section 7.07) shall continue to inure to its benefit and the retiring Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Samples: Indenture (Erickson Air-Crane Inc.)
Notes Collateral Agent. (a) By their acceptance of the Notesaccepting a Security, the Holders hereby designate and appoint Wilmington Trust, National Association each Holder shall be deemed to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and each of the Holders by acceptance of the Notes and the Trustee hereby have irrevocably authorizes appointed the Notes Collateral Agent to take such action on their behalf act as its agent under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicableAgreements to which it is a party, and to exercise such powers have irrevocably authorized and perform such duties as are expressly delegated to instructed the Notes Collateral Agent by to (i) enter into the Security Documents and the Intercreditor Agreements to which it is a party, whether executed on or after the Issue Date; (ii) make any representations on behalf of the Holders set forth in the Security Documents and the Intercreditor Agreements; (iii) bind the Holders on the terms of this Indentureas set forth in the Security Documents and the Intercreditor Agreements; (iv) perform the duties and exercise the rights, powers and discretions that are specifically given to it under the Collateral Security Documents, the Pari Passu Intercreditor Agreement or other documents to which it is a party, together with any other incidental rights, powers and discretions; and (ii) execute each document expressed to be executed by the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under on its behalf, whether executed on or after the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the Issue Date. The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0410.09. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreements and the Collateral Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicableAgreements, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Security Documents and the Intercreditor Agreements to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, Security Documents and the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Agreements or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement is authorized and empowered to appoint one or the Second Lien Intercreditor Agreement, if applicable by more subagents or through receivers, agents, employees, attorneysco-in-fact collateral agents as it deems necessary or through its officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithappropriate.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, have all the rights and shall be fully protected protection provided in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine the Note Documents as well as the rights and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel protections afforded to the Issuer or any GrantorTrustee in Section 7.01(f) through (g), independent accountants Section 7.02 and other experts and advisors selected Section 7.06; provided, however, that the Issuer shall not reimburse any expense or indemnify against any loss, liability or expense incurred by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than through the Notes Collateral Agent’s own willful misconduct or gross negligence.
(d) and, if it so requests, it shall first be indemnified Notwithstanding anything to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall contrary in all cases be fully protected in acting, this Indenture or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement any Security Document or the Second Lien Intercreditor AgreementAgreements, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than no event shall the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable).
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to and any of their respective officers, directors, employees, attorneys or agents be responsible or liable for, nor do they make any representation regarding, the consent existence, genuineness, value or protection of any Collateral, for the legality, validity, enforceability, effectiveness or sufficiency of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event Security Documents, for the creation, perfection, priority, sufficiency or protection of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) any Lien securing the Notes Collateral Agent shall be entitled or any defect or deficiency as to petition a court any such matters (including the filing of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notescontinuation or any Uniform Commercial Code financing or continuations statements or similar documents or instruments).
Appears in 1 contract
Samples: Indenture (LSB Industries Inc)
Notes Collateral Agent. (a) By their The Issuer and each of the holders by acceptance of the Notes, and each beneficial owner of an interest in a Note, hereby designates and appoints the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their its agent under this Indenture, the Collateral Security Documents, the Pari Passu Intercreditor Agreement and any other Market Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, Issuer directs and authorizes and each of the Holders holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, Security Documents and the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Security Documents, the Pari Passu Intercreditor Agreement and the Second Lien any other Market Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien each Security Document and any other Market Intercreditor Agreement, if applicable, and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective termsterms or the terms of this Indenture. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.0910.08. The provisions of this Section 13.09 10.08 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders holders nor any of the Grantors Issuer or any Guarantor shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04herein. Each Holder holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, any other Market Intercreditor Agreement and/or the Second Lien Intercreditor Agreement, if applicable, and the Collateral applicable Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holdersholders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Security Documents, the Pari Passu Intercreditor Agreement and the Second Lien any other Market Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Security Documents, the Pari Passu Intercreditor Agreement or the Second Lien any other Market Intercreditor Agreement, if applicable Agreement or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Security Documents, the Pari Passu Intercreditor Agreement or the Second Lien any other Market Intercreditor Agreement, if applicable Agreement by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable).
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notes
Appears in 1 contract
Samples: Indenture (Chart Industries Inc)
Notes Collateral Agent. (a) By their Each of the Holders by acceptance of the Notes, Notes hereby designates and appoints the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their its agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicableother Security Documents, and each of the Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicableother Security Documents, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicableother Security Documents, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreement and each Collateral other Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.0913.07. The provisions Each of this Section 13.09 are solely the Holders by acceptance of the Notes hereby agrees that the Notes Collateral Agent may act as agent under and subject to the terms of the Security Agreement for the benefit of the Notes Collateral Agent and none of the Trusteeall Secured Parties, including, without limitation, any of the Holders nor Secured Parties that hold any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04Permitted Additional Parity Debt. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreement and the Collateral other Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture and the Second Lien Intercreditor Agreement, if applicableSecurity Documents, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein herein, in the Intercreditor Agreement and in the other Notes Documents Security Documents, to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonNote Party, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, Indenture and the Collateral Security Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable other Security Documents by or through receivers, agents, employees, attorneys-in-fact or through its officersAffiliates and the partners, directors, Affiliatesofficers, employees, agents, advisors, trustees and attorneys in fact advisors of such Person and of such Person’s Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable).
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notes
Appears in 1 contract
Samples: Indenture (Manitowoc Co Inc)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Issuers and each of the Holders by acceptance of the Notes hereby designate and appoint the Applicable Collateral Agent as its agent under this Indenture, the Security Documents, the First Lien Intercreditor Agreement, the ABL Intercreditor Agreement and any other Acceptable Intercreditor Agreement (as applicable) and the Trustee Issuers and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Applicable Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Security Documents, the Pari Passu Intercreditor Agreement and the Second First Lien Intercreditor Agreement, the ABL Intercreditor Agreement and/or any Acceptable Intercreditor Agreement (as applicable), if applicableany, and to exercise such powers and perform such duties as are expressly delegated to the Notes Applicable Collateral Agent by the terms of this Indenture, the Collateral Security Documents, the Pari Passu Intercreditor Agreement and the Second First Lien Intercreditor Agreement, the ABL Intercreditor Agreement and/or any Acceptable Intercreditor Agreement (as applicable), if applicableany, and consents and agrees to the terms of the Pari Passu First Lien Intercreditor Agreement, the Second Lien ABL Intercreditor Agreement, if applicable, any Acceptable Intercreditor Agreement and each Collateral DocumentSecurity Document (as applicable), as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as The Notes Collateral Agent under (in its capacity as the Applicable Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the Notes Collateral Agent Agent) agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0412.07. Each Holder agrees that any action taken by the Notes Applicable Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu First Lien Intercreditor Agreement, the Second Lien ABL Intercreditor Agreement, if applicable, any Acceptable Intercreditor Agreement and the Collateral DocumentsSecurity Documents (as applicable), and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Security Documents, the Pari Passu Intercreditor Agreement and the Second First Lien Intercreditor Agreement, if the ABL Intercreditor Agreement and/or any Acceptable Intercreditor Agreement (as applicable, ) the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents Security Documents, the First Lien Intercreditor Agreement, the ABL Intercreditor Agreement and/or any Acceptable Intercreditor Agreement (as applicable) to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Security Documents, the Pari Passu Intercreditor Agreement or the Second First Lien Intercreditor Agreement, if applicable the ABL Intercreditor Agreement and/or any Acceptable Intercreditor Agreement or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Security Documents, the Pari Passu Intercreditor Agreement or the Second First Lien Intercreditor Agreement, if applicable the ABL Intercreditor Agreement and/or any Acceptable Intercreditor Agreement (as applicable) by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Affiliates of the Notes Collateral Agent and any such sub-agent.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconductmisconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment) or under or in connection with any Collateral Security Document, the Pari Passu Intercreditor Agreement or the Second First Lien Intercreditor Agreement, if applicable the ABL Intercreditor Agreement and/or any Acceptable Intercreditor Agreement or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconductmisconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any other Grantor or Affiliate of any Grantor, or any Officer or Related Persons Person thereof, contained in this Indenture, or any other Notes the Security Documents, the First Lien Intercreditor Agreement, the ABL Intercreditor Agreement and/or any Acceptable Intercreditor Agreement or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Security Documents, the Pari Passu Intercreditor Agreement or the Second First Lien Intercreditor Agreement, if applicable, the ABL Intercreditor Agreement and/or any Acceptable Intercreditor Agreement or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Security Documents, the Pari Passu Intercreditor Agreement or the Second First Lien Intercreditor Agreement, if applicable, the ABL Intercreditor Agreement and/or any Acceptable Intercreditor Agreement or for any failure of any Grantor or any other party to this Indenture, the Collateral Security Documents, the Pari Passu Intercreditor Agreement or the Second First Lien Intercreditor Agreement, if applicable the ABL Intercreditor Agreement and/or any Acceptable Intercreditor Agreement to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Security Documents, the Pari Passu Intercreditor Agreement or the Second First Lien Intercreditor Agreement, the ABL Intercreditor Agreement and/or any Acceptable Intercreditor Agreement, if applicable any, or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Issuers or any other Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any discretionary action under this Indenture, the Collateral Security Documents, the Pari Passu Intercreditor Agreement or the Second First Lien Intercreditor Agreement, if applicable the ABL Intercreditor Agreement and/or any Acceptable Intercreditor Agreement unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Security Documents, the Pari Passu Intercreditor Agreement or the Second First Lien Intercreditor Agreement, if applicable the ABL Intercreditor Agreement and/or any Acceptable Intercreditor Agreement in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” and such notice references the Notes, the Issuers and this Indenture. The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements12.07).
(f) The Notes Collateral Agent under this Indenture may resign at any time by 30 days’ written notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Trustee, at the written direction of the Holders of a majority of the aggregate principal amount of the Notes Collateral Agent then outstanding, may appoint, after consulting with the Trusteeappoint a successor collateral agent under this Indenture, subject to the consent of the Issuers (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer Issuers pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall include such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 12.07 (and Section 7.06 hereof) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
(g) Except as otherwise explicitly provided herein or in the Security Documents, the First Lien Intercreditor Agreement, the ABL Intercreditor Agreement or any Acceptable Intercreditor Agreement, neither the Notes Collateral Agent nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The Notes Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Notes Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment.
(h) The Trustee and the Notes Collateral Agent, as applicable, is authorized and directed to (i) enter into and/or join (including pursuant to amendments or similar agreements) the Security Documents to which it is party, whether on or after the Issue Date, (ii) enter into and/or join (including pursuant to amendments or similar agreements) the First Lien Intercreditor Agreement whether on or after the Issue Date, (iii) enter into and/or join (including pursuant to amendments or similar agreements) the ABL Intercreditor Agreement whether on or after the Issue Date, (iv) enter into and/or join (including pursuant to amendments or similar agreements) any other Acceptable Intercreditor Agreement, if any, whether on or after the Issue Date, (v) make the representations of the Holders set forth in the Security Documents, the First Lien Intercreditor Agreement, the ABL Intercreditor Agreement or any Acceptable Intercreditor Agreement, (vi) bind the Holders on the terms as set forth in the Security Documents, the First Lien Intercreditor Agreement, the ABL Intercreditor Agreement or any Acceptable Intercreditor Agreement and (vii) perform and observe its obligations under the Security Documents, the First Lien Intercreditor Agreement, the ABL Intercreditor Agreement and any Acceptable Intercreditor Agreement.
Appears in 1 contract
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its collateral agent under this Indenture, the Security Agreement, the Security Documents and the Intercreditor Agreement and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Security Documents and the Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Document, together with such powers as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective termsare reasonably incidental thereto. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.091410. The provisions of this Section 13.09 1410 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor the Company or any of the Grantors Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders1403. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a partyherein, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or the Company or any other PersonGuarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Security Documents and the Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. Except as expressly otherwise provided in this Indenture, the Notes Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Notes Collateral Agent is expressly entitled to take or assert under this Indenture, the Security Agreement, the Security Documents and the Intercreditor Agreement, including the exercise of remedies pursuant to Article Five, and any action so taken or not taken shall be deemed consented to by the Trustee and the Holders.
(b) The Notes Collateral Agent may perform execute any of its duties under this Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, employees or attorneys-in-fact or through its officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, employee or attorney-in-fact or Related Person that it selects as long as such selection was made in good faithwithout negligence or willful misconduct.
(c) None of the Notes Collateral Agent or any of its Related Persons agents or employees shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with the Security Agreement, any Collateral Document, the Pari Passu Security Document or Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Company or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereofGuarantor, contained in this Indenture, or any other Notes DocumentsIndenture, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this or any other Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this or any other Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable, or for any failure of the Company or any Grantor Guarantor or any other party to this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Security Documents or the Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons agents or employees shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this or any other Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Security Documents or the Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, books or records of any Grantor the Company or any Grantor’s AffiliatesGuarantor.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telex or telephone message, statement, statement or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Company or any GrantorGuarantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this or any other Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this or any other Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction request or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes Five (subject to this Section 13.09 1410); provided, however, that unless and until the terms Notes Collateral Agent has received any such request, the Notes Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of the Intercreditor Agreements)Default as it shall deem advisable.
(f) U.S. Bank National Association and its Affiliates (and any successor Notes Collateral Agent and its Affiliates) may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Company and the Guarantors as though it was not the Notes Collateral Agent hereunder and without notice to or consent of the Trustee. The Trustee and the Holders acknowledge that, pursuant to such activities, U.S. Bank National Association or its Affiliates (and any successor Notes Collateral Agent and its Affiliates) may receive information regarding the Company and the Guarantors (including information that may be subject to confidentiality obligations in favor of the Company and the Guarantors) and acknowledge that the Notes Collateral Agent shall not be under any obligation to provide such information to the Trustee or the Holders. Nothing herein shall impose or imply any obligation on the part of U.S. Bank National Association (or any successor Notes Collateral Agent) to advance funds.
(g) The Notes Collateral Agent may resign at any time by upon thirty (30) days prior written notice to the Trustee and the IssuerCompany, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Trustee, subject to the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), shall appoint a successor notes collateral agentNotes Collateral Agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition at the expense of the Company a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor notes collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 1410 (and Section 1412) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Samples: Indenture (Railamerica Inc /De)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and each of the Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Notes Collateral Agent to take such action on their behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a party, nor shall the authorized and empowered to appoint one or more co-Notes Collateral Agent have Agents as it deems necessary or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor or any other Person, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting partiesappropriate.
(b) The Subject to Section 7.01, neither the Trustee nor the Notes Collateral Agent may perform nor any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its their respective officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not agents will be responsible or liable for the negligence existence, genuineness, value or willful misconduct protection of any receiverCollateral, agentfor the legality, employeeenforceability, attorney-in-fact effectiveness or Related Person that it selects sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any Lien securing the Notes Obligations and Other Pari Passu Obligations for any defect or deficiency as long as to any such selection was made matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens securing the Notes Obligations and Other Pari Passu Obligations or the Security Documents or any delay in good faithdoing so.
(c) None The Notes Collateral Agent will be subject to such directions as may be given it by the Trustee from time to time (as required or permitted by this Indenture); provided that in the event of conflict between directions received pursuant to the Security Documents and directions received hereunder, the Notes Collateral Agent will be subject to directions received pursuant to the Security Documents and the Intercreditor Agreements. Except as directed by the Trustee as required or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken permitted by any of them under or in connection with this Indenture and any other representatives or the transactions contemplated hereby (except pursuant to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Security Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under will not be obligated:
(1) to act upon directions purported to be delivered to it by any other Person;
(2) to foreclose upon or in connection with, this Indenture, otherwise enforce any Lien securing the Collateral Documents, the Notes Obligations and Other Pari Passu Intercreditor Agreement Obligations; or
(3) to take any other action whatsoever with regard to any or all of the Second Lien Intercreditor Agreement, if applicable, or Liens securing the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Notes Obligations and Other Pari Passu Intercreditor Agreement Obligations, Security Documents or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s AffiliatesCollateral.
(d) The Notes Collateral Agent shall will be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by accountable only for amounts that it to be genuine and correct and to have been signed, sent, or made by actually receives as a result of the proper Person or Persons, and upon advice and statements enforcement of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by Liens securing the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Obligations and Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Security Documents.
(e) The In acting as Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Defaultco-Notes Collateral Agent, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The each co-Notes Collateral Agent shall take such action with respect to such Default or Event may rely upon and enforce each and all of Default as may be requested by the rights, protections, privileges, powers, immunities, indemnities and benefits of the Trustee in accordance with under Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements).VII hereof
(f) The holders of Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) agree that the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers privileges, protections, immunities, indemnities and duties benefits provided to the Notes Collateral Agent by this Indenture and the Security Documents. Furthermore, each holder of a Note, by accepting such Note, consents to the terms of and authorizes and directs the Trustee (in each of its capacities) and the Notes Collateral Agent to enter into and perform each Intercreditor Agreement and Security Documents in each of its capacities thereunder.
(g) If the Issuers (i) Incur First-Priority Lien Obligations at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting First-Priority Lien Obligations entitled to the benefit of an existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officers’ Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the applicable existing Intercreditor Agreements) in favor of a designated agent or representative for the holders of the retiring NotesFirst-Priority Lien Obligations so Incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the holders on the terms set forth therein and perform and observe its obligations thereunder. If the Issuers (i) Incur Other Pari Passu Obligations at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting Other Pari Passu Obligations entitled to the benefit of an existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officers’ Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the applicable existing Intercreditor Agreement) in favor of a designated agent or representative for the holders of the Other Pari Passu Obligations so Incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the holders on the terms set forth therein and perform and observe its obligations thereunder. If the Issuers (i) Incur Junior Lien Obligations at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting Junior Lien Obligations entitled to the benefit of an existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent an Officers’ Certificate so stating and requesting the Notes Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the applicable existing Intercreditor Agreement) in favor of a designated agent or representative for the holders of the Junior Lien Obligations so Incurred, the Notes Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement, bind the holders on the terms set forth therein and perform and observe its obligations thereunder.
(h) At all times when the Trustee is not itself the Notes Collateral Agent, the Issuers will deliver to the Trustee copies of all Security Documents delivered to the Notes Collateral Agent and copies of all documents delivered to the Notes Collateral Agent pursuant to this Indenture and the Security Documents.
(i) Notwithstanding anything in this Indenture to the contrary and for the avoidance of doubt, the Notes Collateral Agent and the Trustee shall have no duty to act outside of the United States of America in respect of any Collateral.
Appears in 1 contract
Samples: Indenture (EP Energy Corp)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve The Trustee shall initially act as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and each of the Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Notes Collateral Agent to take such action on their behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, the duties of the appoint co-Notes Collateral Agent shall be ministerial and administrative Agents as necessary in nature, its sole discretion. In the event the Trustee and the Notes Collateral Agent shall at any time not have any duties or responsibilitiesbe the same Person, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a partyshall take such actions under the Security Documents as are requested by the Trustee and as are not inconsistent with or contrary to the provisions of any Security Document. Except as otherwise explicitly provided herein or in the Security Documents, nor shall neither the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor or any other Person, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform nor any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its respective officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) and employees or agents shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken failure to demand, collect or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to realize upon any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor delay in doing so or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to sell or otherwise dispose of any Collateral upon the Trustee request of any other Person or to take any other action whatsoever with regard to the Collateral or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or documentpart thereof. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless accountable only for amounts that it shall first receive such advice or concurrence actually receives as a result of the Trustee or the Holders exercise of a majority in aggregate principal amount of the Notes as it determinessuch powers, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than and neither the Notes Collateral Agent) andAgent nor any of its officers, if it so requestsdirectors, it employees or agents shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against responsible for any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken act or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)hereunder, except for its own willful misconduct, negligence or bad faith.
(eb) The Trustee, as Notes Collateral Agent, is authorized and directed to (i) enter into the Security Documents and the Intercreditor Agreement, (ii) bind the Holders on the terms as set forth in the Security Documents and the 79 Intercreditor Agreement and (iii) perform and observe its obligations under the Security Documents and the Intercreditor Agreement.
(c) If the Issuer, Holdings or any Guarantor (i) incurs Priority Lien Obligations at any time when no Intercreditor Agreement is in effect or at any time when Indebtedness constituting Priority Lien Obligations entitled to the benefit of any existing Intercreditor Agreement is concurrently retired, and (ii) delivers to the Notes Collateral Agent shall not be deemed an Officer’s Certificate and Opinion of Counsel so stating and requesting the Notes Collateral Agent to have knowledge enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement) in favor of a designated agent or notice representative for the holders of the occurrence of any Default or Event of DefaultPriority Lien Obligations so incurred, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture(and is hereby authorized and directed to) enter into such intercreditor agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or bind the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and on the terms of the Intercreditor Agreements)set forth therein and perform and observe its obligations thereunder.
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notes
Appears in 1 contract
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Issuer and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Collateral Documents and the Trustee Intercreditor Agreements and the Issuer and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicable, Agreements and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicable, Agreements and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreements and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0412.7. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreements and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicableAgreements, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Collateral Documents and the Intercreditor Agreements to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, Documents and the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Agreements or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations Holders.
(if applicable).d) [Reserved]
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Trust Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements12.7).
(f) The Notes Collateral Agent may resign at any time by 30 days’ written notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Issuer shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Trustee, at the direction of the Holders of a majority of the aggregate principal amount of the Notes Collateral Agent then outstanding, may appoint, after consulting with the Trusteeappoint a successor collateral agent, subject to the consent of the Issuers Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 12.7 (and Section 7.7 hereof) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Samples: Indenture (Avaya Holdings Corp.)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Security Documents and the Intercreditor Agreement and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, Security Documents and the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Document, together with such powers as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective termsare reasonably incidental thereto. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.0911.11. The provisions of this Section 13.09 11.11 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders11.03. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a partyherein, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, Security Documents and the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. Except as expressly otherwise provided in this Indenture, the Notes Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Notes Collateral Agent is expressly entitled to take or assert under this Indenture, the Security Documents and the Intercreditor Agreement, including the exercise of remedies pursuant to Article VI, and any action so taken or not taken shall be deemed consented to by the Trustee and the Holders.
(b) The Notes Collateral Agent may perform execute any of its duties under this Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) Persons and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithwithout negligence or willful misconduct.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Security Document or Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Company or any Grantor or Affiliate of any Grantor, or any Officer officer or Related Persons Person thereof, contained in this Indenture, or any other Notes DocumentsIndenture, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this or any other Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this or any other Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this or any other Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certificationtelex, or telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this or any other Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this or any other Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction request or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers a Grantor referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 6; provided, however, that unless and the terms of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If until the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation)has received any such request, the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which but shall not be unreasonably withheld and which shall not be required during a continuing obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (Default as stated in the notice of resignation) the Notes Collateral Agent it shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notesdeem advisable.
Appears in 1 contract
Samples: Indenture (Metals USA Plates & Shapes Southcentral, Inc.)
Notes Collateral Agent. (a) By their The Trustee and each of the Holders by acceptance of the Notes, Notes hereby designates and appoints the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their its agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, and the Trustee and each of the Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Junior Lien Intercreditor Agreement, if applicableany, and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0412.07. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu Intercreditor Agreement, the Second Junior Lien Intercreditor Agreement, if applicableany, and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents Collateral Documents, the Pari Passu Intercreditor Agreement and the Junior Lien Intercreditor Agreement, if any, to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor the Issuers or any other PersonGuarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or and the Second Junior Lien Intercreditor Agreement, if applicable any, or otherwise exist exist, against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel of its selection concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal such counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or nor any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct, as finally adjudicated by a court of competent jurisdiction in a final non-appealable decision) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct, as finally adjudicated by a court of competent jurisdiction in a final non-appealable decision), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor other Guarantor or Affiliate of any GrantorGuarantor, or any Officer or Related Persons Person thereof, contained in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement, or any other Notes Documentsthe Junior Lien Intercreditor Agreement, if any, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicableany, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicableany, or for any failure of the Issuers, any Grantor Guarantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or nor any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, or to inspect the properties, books, or records of the Issuers, any Grantor Guarantor or any Grantor’s of their Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Issuers or any GrantorGuarantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its reasonable satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.,” and such notice references the Notes, the Indenture and the Issuer. The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with with, and subject to the provisions of, Article 6 or by the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements12.07).
(f) The Notes Collateral Agent may resign at any time by 30 days’ written notice to the Trustee and the IssuerIssuers, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Trustee, at the written direction of the Holders of a majority of the aggregate principal amount of the Notes Collateral Agent then outstanding, may appoint, after consulting with the Trusteeappoint a successor collateral agent, subject to the consent of the Issuers Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer Issuers pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 12.07 (and Section 7.10) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Samples: Indenture (Herbalife Ltd.)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Issuers and each of the Holders by acceptance of the Notes hereby designate and ap- point the Notes Collateral Agent as its agent under this Indenture, the Security Documents, the First Lien Intercreditor Agreement and the Trustee Junior Lien Intercreditor Agreement, if any, and the Issuers and each of the Holders by acceptance of the Notes hereby irrevocably authorizes authorize the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this IndentureIn- denture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, and consents and agrees to the terms of the Pari Passu First Lien Intercreditor Agreement, the Second Junior Lien Intercreditor Agreement, if applicableany, and each Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained con- tained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0412.07. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu First Lien Intercreditor Agreement, the Second Junior Lien Intercreditor Agreement, if applicableany, and the Collateral Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Secu- rity Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents Security Documents, the First Lien Intercreditor Agreement and the Junior Lien Intercreditor Agreement, if any, to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or and the Second Junior Lien Intercreditor Agreement, if applicable any, or otherwise exist against the Notes Collateral Agent. Without limiting limit- ing the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations obliga- tions arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent independ- ent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Secu- rity Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in- fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning con- cerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorneyattor- ney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture Inden- ture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct, as determined by a court of competent jurisdiction by a final and non-appealable judgment) or under or in connection with any Collateral Security Document, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Inter- creditor Agreement, if applicable any, or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconductmisconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statementstate- ment, representation, warranty, covenant or agreement made by the Company, the Issuers Issuer or any other Grantor or Affiliate Affili- ate of any Grantor, or any Officer or Related Persons Person thereof, contained in this Indenture, the Security Documents, the First Lien Intercreditor Agreement, or any other Notes Documentsthe Junior Lien Intercreditor Agreement, if any, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicableany, or the validity, effectivenesseffective- ness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicableany, or for any failure of any Grantor Gran- tor or any other party to this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements agree- ments contained in, or conditions of, this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, or to inspect the properties, books, or records rec- ords of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relyingrely- ing, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certificationcertifi- cation, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitationlimita- tion, counsel to the Issuer Issuers or any other Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation inves- tigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, reportre- port, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal princi- pal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence oc- xxxxxxxx of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Lead Issuer referring to this Indenture, describing describ- ing such Default or Event of Default and stating that such notice is a “notice of default.” and such notice references the Notes, the Indenture and the Issuers. The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements12.07).
(f) The Notes Collateral Agent may resign at any time by 30 days’ written notice to the Trustee Trus- tee and the Lead Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Lead Issuer shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignationres- ignation), the Trustee, at the written direction of the Holders of a majority of the aggregate principal amount of the Notes Collateral Agent then outstanding, may appoint, after consulting with the Trusteeappoint a successor collateral agent, subject to the consent of the Issuers Lead Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Lead Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation resig- nation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes succes- sor collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such suc- cessor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereun- der, the provisions of this Section 12.07 (and Section 7.06 hereof) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
(g) The Trustee shall initially act as Notes Collateral Agent and shall be authorized to ap- point co-Notes Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly pro- vided herein or in the Security Documents or the First Lien Intercreditor Agreement or the Junior Lien Intercreditor Agreement, if any, neither the Notes Collateral Agent nor any of its respective officers, di- rectors, employees or agents or other Related Persons shall be liable for failure to demand, collect or real- ize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or other- wise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The Notes Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Notes Collat- eral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment.
(h) The Trustee and the Notes Collateral Agent, as applicable, are authorized and directed to
(i) enter into the Security Documents to which it is party, whether executed on or after the Issue Date, (ii) enter into the First Lien Intercreditor Agreement on the Issue Date, (iii) enter into the Junior Lien Inter- creditor Agreement, if any, after the Issue Date, (iv) make the representations of the Holders set forth in the Security Documents, the First Lien Intercreditor Agreement or the Junior Lien Intercreditor Agree- ment, if any, (v) bind the Holders on the terms as set forth in the Security Documents, the First Lien Inter- creditor Agreement or Junior Lien Intercreditor Agreement, if any, and (vi) perform and observe its obli- gations under the Security Documents, the First Lien Intercreditor Agreement and the Junior Lien Inter- creditor Agreement, if any.
(i) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Notes Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Notes Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 6, the Trustee shall promptly turn the same over to the Notes Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Notes Collateral Agent such proceeds to be applied by the Notes Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the First Lien Inter- creditor Agreement.
(j) The Notes Collateral Agent is each Holder’s agent for the purpose of perfecting the Hold- ers’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code, can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon writ- ten request from the Lead Issuer, the Trustee shall notify the Notes Collateral Agent thereof and promptly shall, subject to the terms of the First Lien Intercreditor Agreement, deliver such Collateral to the Notes Collateral Agent or otherwise deal with such Collateral in accordance with the Notes Collateral Agent’s instructions.
Appears in 1 contract
Samples: Indenture (CONDUENT Inc)
Notes Collateral Agent. (a) By their The Company and each of the Holders by acceptance of the Notes, the Holders and each beneficial owner of an interest in a Note, hereby designate and appoint Wilmington Trust, National Association to serve as the Notes Collateral Agent and as their its agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, Security Documents and each of the Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture and the Second Lien Intercreditor Agreement, if applicableSecurity Documents, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective termsterms or the terms of this Indenture. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.0912.07. The provisions of this Section 13.09 12.07 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors Obligors shall have any rights as a third third-party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04herein. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, Indenture and/or the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and the Collateral applicable Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture and the Second Lien Intercreditor Agreement, if applicableSecurity Documents, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Notes, Guarantees or Security Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonObligor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Security Documents or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of Neither the Notes Collateral Agent or nor any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Security Document or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Company or any Grantor other Obligor or Affiliate of any GrantorObligor, or any Officer or Related Persons Person thereof, contained in this Indenture, the Notes, the Guarantees or any other Notes the Security Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicableSecurity Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicableSecurity Documents, or for any failure of any Grantor Obligor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents to perform its obligations hereunder or thereunder. None of Neither the Notes Collateral Agent or nor any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents or to inspect the properties, books, or records of any Grantor Obligor or any GrantorObligor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relyingrelying conclusively, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Company or any Grantorother Obligor), independent accountants and and/or other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Unless otherwise expressly required hereunder or pursuant to any Security Document, the Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, Indenture or the Collateral Security Documents, the Pari Passu Intercreditor Agreement and shall incur no liability by reason of such failure or the Second Lien Intercreditor Agreementrefusal to take action, if applicable unless it shall first receive such written advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability liability, fees and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected from claims by any Holders in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements12.07).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the IssuerCompany, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Company shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent or 25% of Holders in aggregate principal amount of Notes may appoint, after consulting with the Trustee, subject to the consent of the Issuers Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction jurisdiction, at the expense of the Company, to appoint a successorsuccessor at the sole expense of the Company. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, such Notes Collateral Agent shall be fully and immediately discharged of all responsibilities under this Indenture and the Security Documents to which it is party, provided that the provisions of this Section 12.07 (and Section 7.07) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
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Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Company and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Collateral Documents and the Trustee Intercreditor Agreements, and the Company and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicable, Agreements and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicableAgreements, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreements and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0418.07. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreements and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicableAgreements, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Collateral Documents and the Intercreditor Agreements to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor the Company or any other PersonNote Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, Documents and the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Agreements or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable).
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notes
Appears in 1 contract
Samples: Indenture (INVACARE HOLDINGS Corp)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Company and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Collateral Documents and the Trustee Intercreditor Agreements, and the Company and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicable, Agreements and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicableAgreements, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreements and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0418.07. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreements and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents and the Second Lien Intercreditor Agreement, if applicableAgreements, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Collateral Documents and the Intercreditor Agreements to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor the Company or any other PersonNote Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, Documents and the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Agreements or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements by or through receivers, interim receivers, managers, monitors, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, interim receiver, manager, monitor, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement Document or the Second Lien Intercreditor Agreement, if applicable Agreements or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Company or any Grantor other Note Party or Affiliate of any GrantorNote Party, or any Officer or Related Persons Person thereof, contained in this Indenture, the Collateral Documents or any other Notes Documentsthe Intercreditor Agreements, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicableAgreements, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicableAgreements, or for any failure of any Grantor Note Party or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements or to inspect the properties, books, or records of any Grantor Note Party or any GrantorNote Party’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Company or any Grantorother Note Party), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its reasonable satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Documents or the Second Lien Intercreditor Agreement, if applicable Agreements in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements18.07).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the IssuerCompany, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Company shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Trustee, at the direction of the Holders of a majority of the aggregate principal amount of the Notes Collateral Agent then outstanding, may appoint, after consulting with the Trusteeappoint a successor collateral agent, subject to the consent of the Issuers Company (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notescompetent
Appears in 1 contract
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Security Documents, the ABL-Notes Intercreditor Agreement and the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and each of the Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, Security Documents and the Pari Passu ABL-Notes Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Security Documents, the ABL-Notes Intercreditor Agreement and the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu ABL-Notes Intercreditor Agreement, the Second Lien Pari Passu Intercreditor Agreement, if applicable, Agreement and each Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Security Documents, the ABL-Notes Intercreditor Agreement and the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.0913.9. The provisions of this Section 13.09 13.9 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0413.4. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu ABL-Notes Intercreditor Agreement, the Second Lien Pari Passu Intercreditor Agreement, if applicable, Agreement and the Collateral Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Security Documents, the ABL-Notes Intercreditor Agreement and the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Note Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Security Documents, the ABL-Notes Intercreditor Agreement or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties or exercise any rights under this Indenture, the Collateral Security Documents, the ABL-Notes Intercreditor Agreement or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) Controlled Investment Affiliates and shall be entitled to advice of counsel concerning all matters pertaining to such dutiesduties and rights, and and, in the absence of gross negligence or willful misconduct on its part, shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person Controlled Investment Affiliate that it selects as long as such selection was made in good faith.
(c) None of the Notes Collateral Agent or any of its Related Persons Controlled Investment Affiliates shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Security Document, the ABL-Notes Intercreditor Agreement or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Issuer or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons Controlled Investment Affiliates thereof, contained in this Indenture, or any other Notes Note Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Security Documents, the ABL-Notes Intercreditor Agreement or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Security Documents, the ABL-Notes Intercreditor Agreement or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Security Documents, the ABL-Notes Intercreditor Agreement or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons Controlled Investment Affiliates shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Security Documents, the ABL-Notes Intercreditor Agreement or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The In the absence of gross negligence or willful misconduct on its part, the Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Security Documents, the ABL-Notes Intercreditor Agreement or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence direction of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) Representative and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicableany)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Security Documents, the ABL-Notes Intercreditor Agreement or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicableany).
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested directed by the Trustee in accordance with Article 6 VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 13.9 and the terms of the Pari Passu Intercreditor AgreementsAgreement).
(f) Wilmington Trust, National Association and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with any Grantor and its Affiliates as though it was not the Notes Collateral Agent hereunder and without notice to or consent of the Trustee. The Trustee and the Holders acknowledge that, pursuant to such activities, Wilmington Trust, National Association or its Affiliates may receive information regarding any Grantor or its Affiliates (including information that may be subject to confidentiality obligations in favor of any such Grantor or such Affiliate) and acknowledge that the Notes Collateral Agent shall not be under any obligation to provide such information to the Trustee or the Holders. Nothing herein shall impose or imply any obligation on the part of the Wilmington Trust, National Association to advance funds.
(g) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to of its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Issuer shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed by the Issuer prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the Notes Collateral Agent’s notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the Notes Collateral Agent’s notice of resignation) ), the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor notes collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring hereunder, the provisions of this Section 13.9 (and Section 7.7) shall continue to inure to the benefit of the retiring Notes Collateral Agent and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Samples: Indenture (BMC Stock Holdings, Inc.)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and each Each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Security Documents, the First Lien Intercreditor Agreement and the Trustee Junior Lien Intercreditor Agreement, if any, and the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, and consents and agrees to the terms of the Pari Passu First Lien Intercreditor Agreement, the Second Junior Lien Intercreditor Agreement, if applicableany, and each Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0411.07. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu First Lien Intercreditor Agreement, the Second Junior Lien Intercreditor Agreement, if applicableany, and the Collateral Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents Security Documents, the First Lien Intercreditor Agreement and the Junior Lien Intercreditor Agreement, if any, to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or and the Second Junior Lien Intercreditor Agreement, if applicable any, or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys attorneys-in fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel of its selection concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to conclusively rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(ed) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes in accordance with Article 6 (subject to this Section 13.09 and the terms of the Intercreditor Agreements11.07).
(fe) The Notes Collateral Agent may resign at any time by 30 days’ written notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Issuer shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Trustee, at the direction of the Holders of a majority of the aggregate principal amount of the Notes Collateral Agent then outstanding, may appoint, after consulting with the Trusteeappoint a successor collateral agent, subject to the consent of the Issuers Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notesthe
Appears in 1 contract
Samples: Indenture (SunCoke Energy, Inc.)
Notes Collateral Agent. (a) By their Each of the Holders by acceptance of the Notes, Notes hereby designates and appoints the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their its agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicableother Security Documents, and each of the Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicableother Security Documents, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicableother Security Documents, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreement and each Collateral other Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.0913.07. The provisions Each of this Section 13.09 are solely the Holders by acceptance of the Notes hereby agrees that the Notes Collateral Agent may act as agent under and subject to the terms of the Security Agreement for the benefit of the Notes Collateral Agent and none of the Trusteeall Secured Parties, including, without limitation, any of the Holders nor Secured Parties that hold any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04Permitted Additional Parity Debt. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Agreement and the Collateral other Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture and the Second Lien Intercreditor Agreement, if applicableSecurity Documents, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein herein, in the Intercreditor Agreement and in the other Notes Documents Security Documents, to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonNote Party, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, Indenture and the Collateral Security Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable other Security Documents by or through receivers, agents, employees, attorneys-in-fact or through its officersAffiliates and the partners, directors, Affiliatesofficers, employees, agents, advisors, trustees and attorneys in fact advisors of such Person and of such Person’s Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Security Document or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Issuer or any Grantor other Note Party or Affiliate of any GrantorNote Party, or any Officer or Related Persons Person thereof, contained in this Indenture, Indenture or any other Notes the Security Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicableSecurity Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicableSecurity Documents, or for any failure of any Grantor Note Party or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, Indenture or the Collateral Security Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor Note Party or any GrantorNote Party’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantorother Note Party), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, Indenture or the Collateral Security Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notes
Appears in 1 contract
Samples: Indenture (Manitowoc Co Inc)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Company and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Security Documents, the First Lien Intercreditor Agreement and the Trustee Junior Lien Intercreditor Agreement, if any, and the Company and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, and consents and agrees to the terms of the Pari Passu First Lien Intercreditor Agreement, the Second Junior Lien Intercreditor Agreement, if applicableany, and each Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0412.07. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu First Lien Intercreditor Agreement, the Second Junior Lien Intercreditor Agreement, if applicableany, and the Collateral Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents Security Documents, the First Lien Intercreditor Agreement and the Junior Lien Intercreditor Agreement, if any, to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or and the Second Junior Lien Intercreditor Agreement, if applicable any, or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with any Collateral Security Document, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Company or any other Grantor or Affiliate of any Grantor, or any Officer or Related Persons Person thereof, contained in this Indenture, the Security Documents, the First Lien Intercreditor Agreement, or any other Notes Documentsthe Junior Lien Intercreditor Agreement, if any, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicableany, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicableany, or for any failure of any Grantor or any other party to this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable).
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notes
Appears in 1 contract
Samples: Indenture (E.W. SCRIPPS Co)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its collateral agent under this Indenture, the Security Agreement, the Security Documents and the Intercreditor Agreement and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Security Documents and the Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Document, together with such powers as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective termsare reasonably incidental thereto. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.091410. The provisions of this Section 13.09 1410 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor the Company or any of the Grantors Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders1403. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and or in the other Notes Documents to which the Notes Collateral Agent is a partySecurity Documents, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or the Company or any other PersonGuarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Security Documents and the Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects Except as long as such selection was made in good faith.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained expressly otherwise provided in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable).
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Trustee Notes Collateral Agent is expressly entitled to take or the Issuers referring to assert under this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or Security Agreement, the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 Security Documents and the terms Intercreditor Agreement, including the exercise of the Intercreditor Agreements).
(f) The Notes Collateral Agent may resign at remedies pursuant to Article Five, and any time action so taken or not taken shall be deemed consented to by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesHolders.
Appears in 1 contract
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Company and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture and the Trustee Collateral Documents, and the Company and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, Indenture and the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, Documents and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, Indenture and the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0418.07. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, Indenture and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, Indenture and the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Collateral Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor the Company or any other PersonNote Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, Indenture and the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Documents or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Documents by or through receivers, interim receivers, managers, monitors, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, interim receiver, manager, monitor, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions Transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement Document or the Second Lien Intercreditor Agreement, if applicable or the transactions Transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Company or any Grantor other Note Party or Affiliate of any GrantorNote Party, or any Officer or Related Persons Person thereof, contained in this Indenture, Indenture or any other Notes the Collateral Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, Indenture or the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, Indenture or the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor Note Party or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Documents to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, Indenture or the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Documents or to inspect the properties, books, or records of any Grantor Note Party or any GrantorNote Party’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Company or any Grantorother Note Party), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Documents unless it shall first receive such advice or concurrence of the Trustee Trustee, the Holder Representatives or the Holders of a majority 60% in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its reasonable satisfaction by the Holder Representatives or the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, Indenture or the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Documents in accordance with a written request, direction, instruction or consent of the Trustee Trustee, the Holder Representatives or the Holders of a majority 60% in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 6, the Holder Representatives or the Holders of a majority 60% in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements18.07).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the IssuerCompany, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Company shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Trustee, at the direction of the Holder Representatives or the Holders of 60% of the aggregate principal amount of the Notes Collateral Agent then outstanding, may appoint, after consulting with the Trusteeappoint a successor collateral agent, subject to the consent of the Issuers Company (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. The Holder Representatives or the Holders of 60% in aggregate principal amount of the Notes at the time outstanding may at any time remove the Notes Collateral Agent and nominate a successor collateral agent that shall be deemed appointed as successor collateral agent by giving written notice of such removal and appointment to the Company and by delivering notice thereof to the remaining Holders (if any). Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notesor removed Notes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring or removed Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation or removal hereunder, the provisions of this Section 18.07 shall continue to inure to its benefit and the retiring or removed Notes Collateral Agent shall not by reason of such resignation or removal be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Samples: Indenture (Nextnav Inc.)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Trustee and each of the Holders by acceptance of the Securities hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Security Agreement, the Security Documents and the Intercreditor Agreement and the Trustee and each of the Holders by acceptance of the Securities hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Security Documents and the Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Document, together with such powers as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective termsare reasonably incidental thereto. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.0910.13. The provisions of this Section 13.09 10.13 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor the Company or any of the Grantors Guarantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and the Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders10.13. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Intercreditor Agreement Security Documents and the Second Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a partyherein, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or the Company or any other PersonGuarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Security Documents and the Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. Except as expressly otherwise provided in this Indenture, the Notes Collateral Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which the Notes Collateral Agent is expressly entitled to take or assert under this Indenture, the Security Agreement, the Security Documents and the Intercreditor Agreement, including the exercise of remedies pursuant to Article Six, and any action so taken or not taken shall be deemed consented to by the Trustee and the Holders.
(b) The Notes Collateral Agent may perform execute any of its duties under this Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, employees or attorneys-in-fact or through its officers, directors, Affiliates, employees, agents, advisors, and attorneys in fact (collectively, “Related Persons”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, employee or attorney-in-fact or Related Person that it selects as long as such selection was made in good faithwithout negligence or willful misconduct.
(c) None of the Notes Collateral Agent or any of its Related Persons agents or employees shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with the Security Agreement, any Collateral Document, Security Document or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Company or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, Guarantor contained in this Indenture, Indenture or any other Notes Documentsindenture, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this IndentureIndenture or any other indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this IndentureIndenture or any other indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Intercreditor Agreement Security Documents or the Second Lien Intercreditor Agreement, if applicable, or for any failure of the Company or any Grantor Guarantor or any other party to this Indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Security Documents or the Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons agents or employees shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this IndentureIndenture or any other indenture, the Collateral DocumentsSecurity Agreement, the Pari Passu Security Documents or the Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, books or records of any Grantor the Company or any Grantor’s AffiliatesGuarantor.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telex or telephone message, statement, statement or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Company or any GrantorGuarantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this or any other Indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this IndentureIndenture or any other indenture, the Collateral Documents, Security Documents or the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction request or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes Six (subject to this Section 13.09 7.1); provided, however, that unless and until the terms Notes Collateral Agent has received any such request, the Notes Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of the Intercreditor Agreements)Default as it shall deem advisable.
(f) U.S. Bank National Association and its Affiliates (and any successor Notes Collateral Agent and its Affiliates) may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with the Company and the Guarantors as though it was not the Notes Collateral Agent hereunder and without notice to or consent of the Trustee. The Trustee and the Holders acknowledge that, pursuant to such activities, U.S. Bank National Association or its Affiliates (and any successor Notes Collateral Agent and its Affiliates) may receive information regarding the Company and the Guarantors (including information that may be subject to confidentiality obligations in favor of the Company and the Guarantors) and acknowledge that the Notes Collateral Agent shall not be under any obligation to provide such information to the Trustee or the Holders. Nothing herein shall impose or imply any obligation on the part of U.S. Bank National Association (or any successor Notes Collateral Agent) to advance funds.
(g) The Notes Collateral Agent may resign at any time by upon thirty (30) days prior written notice to the Trustee and the IssuerCompany, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Trustee, subject to the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), shall appoint a successor notes collateral agentNotes Collateral Agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition at the expense of the Company a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor notes collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 10.13 (and Section 10.15) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Samples: Indenture (Clean Harbors Inc)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Issuer and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Security Documents, the First Lien Intercreditor Agreement and the Trustee Junior Lien Intercreditor Agreement, if any, and the Issuer and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, and consents and agrees to the terms of the Pari Passu First Lien Intercreditor Agreement, the Second Junior Lien Intercreditor Agreement, if applicableany, and each Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0412.7. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu First Lien Intercreditor Agreement, the Second Junior Lien Intercreditor Agreement, if applicableany, and the Collateral Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement and the Second Junior Lien Intercreditor Agreement, if applicableany, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents Security Documents, the First Lien Intercreditor Agreement and the Junior Lien Intercreditor Agreement, if any, to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or and the Second Junior Lien Intercreditor Agreement, if applicable any, or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in fact attorneys-infact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any Grantor or Affiliate of any Grantor, or any Officer or Related Persons thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer or any other Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Security Documents, the Pari Passu First Lien Intercreditor Agreement or the Second Junior Lien Intercreditor Agreement, if applicable any, in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations Holders.
(if applicable).d) [Reserved]
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Trust Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements12.7).
(f) The Notes Collateral Agent may resign at any time by 30 days’ written notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Issuer shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Trustee, at the direction of the Holders of a majority of the aggregate principal amount of the Notes Collateral Agent then outstanding, may appoint, after consulting with the Trusteeappoint a successor collateral agent, subject to the consent of the Issuers Issuer (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, the provisions of this Section 12.7 (and Section 7.7 hereof) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
Appears in 1 contract
Notes Collateral Agent. (a) By their The Company and each of the Holders by acceptance of the Notes, the Holders and each beneficial owner of an interest in a Note, hereby designate and appoint Wilmington Trust, National Association to serve as the Notes Collateral Agent and as their its agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, Security Documents and each of the Holders by acceptance of the Notes and the Trustee hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture and the Second Lien Intercreditor Agreement, if applicableSecurity Documents, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and each Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective termsterms or the terms of this Indenture. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.091408. The provisions of this Section 13.09 1408 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors Obligors shall have any rights as a third third-party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.04herein. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision of this Indenture, Indenture and/or the Pari Passu Intercreditor Agreement, the Second Lien Intercreditor Agreement, if applicable, and the Collateral applicable Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture and the Second Lien Intercreditor Agreement, if applicableSecurity Documents, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonObligor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Security Documents or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c) None of Neither the Notes Collateral Agent or nor any of its Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own bad faith, gross negligence or willful misconduct) or under or in connection with any Collateral Document, the Pari Passu Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable Security Document or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own bad faith, gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers Company or any Grantor other Obligor or Affiliate of any GrantorObligor, or any Officer or Related Persons Person thereof, contained in this Indenture, or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicableSecurity Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicableSecurity Documents, or for any failure of any Grantor Obligor or any other party to this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents to perform its obligations hereunder or thereunder. None of Neither the Notes Collateral Agent or nor any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents or to inspect the properties, books, or records of any Grantor Obligor or any GrantorObligor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, (in each case in the absence of bad faith, gross negligence or willful misconduct) upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Company or any Grantorother Obligor), independent accountants and and/or other experts and advisors selected by the such Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Unless otherwise expressly required hereunder or pursuant to any Security Document, the Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, Indenture or the Collateral Security Documents, the Pari Passu Intercreditor Agreement and shall incur no liability by reason of such failure or the Second Lien Intercreditor Agreementrefusal to take action, if applicable unless it shall first receive such written advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability liability, fees and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected from claims by any Holders in acting, or in refraining from acting, under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Indenture or the Second Lien Intercreditor Agreement, if applicable Security Documents in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Outstanding Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 Five or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements1408).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the IssuerCompany, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor AgreementIndenture, the Issuers Company shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent or 25% of Holders in aggregate principal amount of Notes may appoint, after consulting with the Trustee, subject to the consent of the Issuers Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successorsuccessor at the sole expense of the Company. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring NotesNotes Collateral Agent, and the term “Notes Collateral Agent” shall mean such successor collateral agent, and the retiring Notes Collateral Agent’s appointment, powers and duties as a Notes Collateral Agent shall be terminated. After the retiring Notes Collateral Agent’s resignation hereunder, such Notes Collateral Agent shall be fully and immediately discharged of all responsibilities under this Indenture and the Security Documents to which it is party, provided that the provisions of this Section 1408 (and Section 607) shall continue to inure to its benefit and the retiring Notes Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was a Notes Collateral Agent under this Indenture.
Appears in 1 contract
Samples: Indenture (NMI Holdings, Inc.)
Notes Collateral Agent. (a) By their acceptance of the Notes, the Holders hereby designate and appoint Wilmington Trust, National Association to serve as Notes Collateral Agent and as their agent under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, The Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes Collateral Agent as its agent under this Indenture, the Security Documents and the First Lien Intercreditor Agreement, and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on their its behalf under the provisions of this Indenture, the Collateral Documents, Security Documents and the Pari Passu First Lien Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents and the Second First Lien Intercreditor Agreement, if applicable, and consents and agrees to the terms of the Pari Passu Intercreditor Agreement, the Second First Lien Intercreditor Agreement, if applicable, Agreement and each Collateral Security Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. Wilmington Trust, National Association hereby agrees to serve as Notes Collateral Agent under the Collateral Documents, the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, if applicable, and acknowledges that the The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 13.09. The provisions of this Section 13.09 are solely for the benefit of the Notes Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 13.0412.07. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the provision provisions of this Indenture, the Pari Passu Intercreditor Agreement, the Second First Lien Intercreditor Agreement, if applicable, and the Collateral Security Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents and the Second First Lien Intercreditor Agreement, if applicable, the duties of the Notes Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Security Documents and the First Lien Intercreditor Agreement, to which the Notes Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, any Grantor Holder or any other PersonGrantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents, Security Documents and the Pari Passu Intercreditor Agreement or the Second First Lien Intercreditor Agreement, if applicable or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Notes Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) The Notes Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second First Lien Intercreditor Agreement, if applicable by or through receivers, agents, employees, attorneys-in-fact or through its with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, Affiliates, employees, agents, advisors, advisors and attorneys in attorneys-in-fact of such Person and its Affiliates (collectively, a “Related PersonsPerson”) ), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Notes Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faithfaith and with due care.
(c) None of the Notes Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except to the extent that the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct) or under or in connection with any Collateral Document, Security Document or the Pari Passu First Lien Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or the transactions contemplated thereby (except to the extent that the foregoing are found by a final, non-appealable 168 judgment of a court of competent jurisdiction to have resulted from for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company, the Issuers or any other Grantor or Affiliate of any Grantor, or any Officer or Related Persons Person thereof, contained in this Indenture, the Security Documents or any other Notes Documents, the First Lien Intercreditor Agreement or in any certificate, report, statement or other document referred to or provided for in, or received by the Notes Collateral Agent under or in connection with, this Indenture, the Collateral Documents, Security Documents or the Pari Passu First Lien Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement Security Documents or the Second First Lien Intercreditor Agreement, if applicable, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents, Security Documents or the Pari Passu First Lien Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable to perform its obligations hereunder or thereunder. None of the Notes Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to monitor, ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents, Security Documents or the Pari Passu First Lien Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d) The Notes Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Issuer Issuers or any other Grantor), independent accountants and other experts and advisors selected by the Notes Collateral Agent. The Notes Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Notes Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents, Security Documents or the Pari Passu First Lien Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines, or if there are any Other Pari Passu Lien Obligations then outstanding, the “Applicable Authorized Representative” under the Pari Passu Intercreditor Agreement (if other than the Notes Collateral Agent) determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders (or holders of Other Pari Passu Lien Obligations (if applicable)) against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents, Security Documents or the Pari Passu First Lien Intercreditor Agreement or the Second Lien Intercreditor Agreement, if applicable in accordance with a written request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes, or if there are any Other Pari Passu Lien Obligations then outstanding, the Applicable Authorized Representative (if other than the Notes Collateral Agent) and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders and holders of Other Pari Passu Lien Obligations (if applicable)Holders.
(e) The Notes Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Notes Collateral Agent shall have received written notice from the Trustee or the Issuers referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Notes Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 13.09 and the terms of the Intercreditor Agreements12.07).
(f) The Notes Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. If the Notes Collateral Agent resigns under this Indenture or the Pari Passu Intercreditor Agreement, the Issuers shall appoint a successor notes collateral agent. If no successor notes collateral agent is appointed prior to the intended effective date of the resignation of the Notes Collateral Agent (as stated in the notice of resignation), the Notes Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuers (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor notes collateral agent. If no successor notes collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Notes Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor notes collateral agent hereunder, such successor notes collateral agent shall succeed to all the rights, powers and duties of the retiring Notes
Appears in 1 contract
Samples: Indenture (Alight Group, Inc.)
