Regarding Collateral. (a) Each Agent hereby disclaims any representation or warranty to the Lenders concerning and shall have no responsibility to Lenders for the existence, priority or perfection of the Liens and security interests granted hereunder or under any other Loan Document or in the value of any of the Collateral and shall not be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral. Each Agent makes no representation as to the value, sufficiency or condition of the Collateral or any part thereof, as to the title of the Loan Parties to the Collateral, as to the security afforded by this Agreement or any other Loan Document. No Agent shall be responsible for insuring the Collateral or for the payment of taxes, charges, assessments or liens upon the Collateral. No Agent shall be responsible for the maintenance of the Collateral, except as expressly provided in the immediately following sentence when such Agent has possession of the Collateral. No Agent shall have any duty to the Lenders as to any Collateral in its possession or in the possession of someone under its control or in the possession or control of any agent or nominee of such Agent or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto, except the duty to accord such of the Collateral as may be in its possession substantially the same care as it accords similar assets held for the benefit of third parties and the duty to account for monies received by it. No Agent shall be under an obligation independently to request or examine insurance coverage with respect to any Collateral. No Agent shall be liable for the acts or omissions of any bank, depositary bank, custodian, independent counsel of the Borrowers or any other party selected by such Agent with reasonable care or selected by any other party hereto that may hold or possess Collateral or documents related to Collateral and such Agent shall not be required to monitor the performance of any such Persons holding Collateral. For the avoidance of doubt, no Agent shall be responsible to the Lenders for the perfection of any Lien or for the filing, form, content or renewal of any UCC financing statements, fixture filings, mortgages, deeds of trust and such other documents or instruments, provided however that if instructed by the Required Lenders and at the expense of the Borrowers, the Collateral Agent shall arrange for the filing and continuation, of financing statements or other filing or recording documents or instruments for the perfection of security interests in the Collateral; provided, that, the Collateral Agent shall not be responsible for the preparation, form, content, sufficiency or adequacy of any such financing statements all of which shall be provided in writing to the Collateral Agent by the Required Lenders including the jurisdictions and filing offices where the Collateral Agent is required to file such financing statements. (b) In connection with the exercise of any rights or remedies in respect of, or foreclosure or realization upon, any real estate-related collateral pursuant to this Agreement or any other Loan Document, the Collateral Agent shall not be obligated to take title to or possession of real estate in its own name, or otherwise in a form or manner that may, in its reasonable judgment, expose it to liability. In the event that the Collateral Agent deems that it may be considered an “owner or operator” under any environmental laws or otherwise cause the Collateral Agent to incur, or be exposed to, any environmental liability or any liability under any other federal, state or local law, the Collateral Agent reserves the right, instead of taking such action, either to resign as Collateral Agent subject to the terms and conditions of Section 8.06 or to arrange for the transfer of the title or control of the asset to a court appointed receiver. The Collateral Agent will not be liable to any Person for any environmental liability or any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or release or threatened discharge or release of any hazardous materials into the environment. (c) In connection with any tax affidavit or similar instrument required to be filed or delivered by the Collateral Agent in connection with any mortgage, the Collateral Agent shall complete such tax affidavit or similar instrument pursuant to the information provided to it in a certificate executed by a Financial Officer of the Company. The Collateral Agent shall be entitled to conclusively rely on the information provided to it in such certificate and shall not be liable to the Borrowers, the Lenders or any other Person for its acting in reliance thereon.
Appears in 1 contract
Samples: Dip Credit Agreement
Regarding Collateral. (a) Each Agent hereby disclaims any representation or warranty to the Lenders concerning and shall have no responsibility to Lenders for the existence, priority or perfection of the Liens and security interests granted hereunder or under any other Loan Other Document or in the value of any of the Collateral and shall not be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral. Each Agent makes no representation as to the value, sufficiency or condition of the Collateral or any part thereof, as to the title of the Loan Credit Parties to the Collateral, as to the security afforded by this Agreement or any other Loan Other Document. No Agent shall not be responsible for insuring the Collateral or for the payment of taxesTaxes, charges, assessments or liens upon the Collateral. No Agent shall not be responsible for the maintenance of the Collateral, except as expressly provided in the immediately following sentence when such Agent has possession of the Collateral. No Agent shall have any no duty to the Lenders as to any Collateral in its possession or in the possession of someone under its control or in the possession or control of any agent or nominee of such Agent or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto, except the duty to accord such of the Collateral as may be in its possession substantially the same care as it accords similar assets held for the benefit of third parties and the duty to account for monies received by it. No Agent shall not be under an obligation independently to request or examine insurance coverage with respect to any Collateral. No Agent shall not be liable for the acts or omissions of any bank, depositary bank, custodian, independent counsel of the Borrowers any Credit Party or any other party selected by such Agent with reasonable care or selected by any other party hereto that may hold or possess Collateral or documents related to Collateral and such Agent shall not be required to monitor the performance of any such Persons holding Collateral. For the avoidance of doubt, no Agent shall not be responsible to the Lenders for the perfection of any Lien or for the filing, form, content or renewal of any UCC financing statements, fixture filings, mortgages, deeds of trust and such other documents or instruments, provided however provided, however, that if instructed by the Required Lenders and at the expense of the Borrowers, the Collateral Agent shall arrange for the filing and continuation, continuation of financing statements or other filing or recording documents or instruments for the perfection of security interests in the Collateral; provided, that, the Collateral Agent shall not be responsible for the preparation, form, content, sufficiency or adequacy of any such financing statements statements, all of which shall be provided in writing to the Collateral Agent by the Required Lenders including the jurisdictions and filing offices where the Collateral Agent is required to file such financing statements.
(b) In connection with the exercise of any rights or remedies in respect of, or foreclosure or realization upon, any real estateReal Property-related collateral pursuant to this Agreement or any other Loan Other Document, the Collateral Agent shall not be obligated to take title to or possession of real estate Real Property in its own name, or otherwise in a form or manner that may, in its reasonable judgment, expose it to liability. In the event that the Collateral Agent deems that it may be considered an “owner or operator” under any environmental laws or otherwise cause the Collateral Agent to incur, or be exposed to, any environmental liability or any liability under any other federal, state or local law, the Collateral Agent reserves the right, instead of taking such action, either to resign as Collateral Agent subject to the terms and conditions of Section 8.06 14.6 or to arrange for the transfer of the title or control of the asset to a court appointed receiver. The Collateral Agent will not be liable to any Person for any environmental liability or any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or release or threatened discharge or release of any hazardous materials Hazardous Materials into the environment.
(c) In connection with any tax affidavit or similar instrument required to be filed or delivered by the Collateral Agent in connection with any mortgageMortgage, the Collateral Agent shall complete such tax affidavit or similar instrument pursuant to the information provided to it in a certificate executed by a Financial an Authorized Officer of the CompanyBorrowers. The Collateral Agent shall be entitled to conclusively rely on the information provided to it in such certificate and shall not be liable to the BorrowersCredit Parties, the Lenders or any other Person for its acting in reliance thereon.
Appears in 1 contract
Samples: Second Lien Credit and Security Agreement (Emerge Energy Services LP)
Regarding Collateral. (a) Each Agent hereby disclaims any representation or warranty to the Lenders Noteholders concerning and shall have no responsibility to Lenders Noteholders for the existence, priority or perfection of the Liens and security interests granted hereunder or under any other Loan Other Document or in the value of any of the Collateral and shall not be responsible or liable to the Lenders Noteholders for any failure to monitor or maintain any portion of the Collateral. Each Agent makes no representation as to the value, sufficiency or condition of the Collateral or any part thereof, as to the title of the Loan Note Parties to the Collateral, as to the security afforded by this Agreement or any other Loan Other Document. No Agent shall not be responsible for insuring the Collateral or for the payment of taxesTaxes, charges, assessments or liens upon the Collateral. No Agent shall not be responsible for the maintenance of the Collateral, except as expressly provided in the immediately following sentence when such Agent has possession of the Collateral. No Agent shall have any no duty to the Lenders Noteholders as to any Collateral in its possession or in the possession of someone under its control or in the possession or control of any agent or nominee of such Agent or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto, except the duty to accord such of the Collateral as may be in its possession substantially the same care as it accords similar assets held for the benefit of third parties and the duty to account for monies received by it. No Agent shall not be under an obligation independently to request or examine insurance coverage with respect to any Collateral. No Agent shall not be liable for the acts or omissions of any bank, depositary bank, custodian, independent counsel of the Borrowers any Note Party or any other party selected by such Agent with reasonable care or selected by any other party hereto that may hold or possess Collateral or documents related to Collateral and such Agent shall not be required to monitor the performance of any such Persons holding Collateral. For the avoidance of doubt, no Agent shall not be responsible to the Lenders Noteholders for the perfection of any Lien or for the filing, form, content or renewal of any UCC financing statements, fixture filings, mortgages, deeds of trust and such other documents or instruments, provided however provided, however, that if instructed by the Required Lenders Noteholders and at the expense of the BorrowersIssuers, the Collateral Agent shall arrange for the filing and continuation, continuation of financing statements or other filing or recording documents or instruments for the perfection of security interests in the Collateral; provided, that, the Collateral Agent shall not be responsible for the preparation, form, content, sufficiency or adequacy of any such financing statements statements, all of which shall be provided in writing to the Collateral Agent by the Required Lenders Noteholders including the jurisdictions and filing offices where the Collateral Agent is required to file such financing statements.
(b) In connection with the exercise of any rights or remedies in respect of, or foreclosure or realization upon, any real estateReal Property-related collateral pursuant to this Agreement or any other Loan Other Document, the Collateral Agent shall not be obligated to take title to or possession of real estate Real Property in its own name, or otherwise in a form or manner that may, in its reasonable judgment, expose it to liability. In the event that the Collateral Agent deems that it may be considered an “owner or operator” under any environmental laws or otherwise cause the Collateral Agent to incur, or be exposed to, any environmental liability Environmental Liability or any liability under any other federal, state or local law, the Collateral Agent reserves the right, instead of taking such action, either to resign as Collateral Agent subject to the terms and conditions of Section 8.06 14.6 or to arrange for the transfer of the title or control of the asset to a court appointed receiver. The Collateral Agent will not be liable to any Person for any environmental liability or any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or release or threatened discharge or release of any hazardous materials Hazardous Materials into the environment.
(c) In connection with any tax affidavit or similar instrument required to be filed or delivered by the Collateral Agent in connection with any mortgageMortgage, the Collateral Agent shall complete such tax affidavit or similar instrument pursuant to the information provided to it in a certificate executed by a Financial an Authorized Officer of the CompanyIssuers. The Collateral Agent shall be entitled to conclusively rely on the information provided to it in such certificate and shall not be liable to the BorrowersNote Parties, the Lenders Noteholders or any other Person for its acting in reliance thereon.
Appears in 1 contract
Samples: Second Lien Note Purchase Agreement (Emerge Energy Services LP)
Regarding Collateral. (a) Each Agent hereby disclaims any representation or warranty to the Lenders concerning and shall have no responsibility to Lenders for the existence, priority or perfection of the Liens and security interests granted hereunder or under any other Loan Document or in the value of any of the The Collateral and shall not be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral. Each Agent makes no representation as to the value, sufficiency or condition of the Collateral or any part thereof, as to the title of the Loan Parties Borrower to the Collateral, as to the security afforded by this Agreement or any other Loan Document. No , and the Collateral Agent shall incur no liability or responsibility in respect of any such matters. The Collateral Agent shall not be responsible for insuring the Collateral or Collateral, for the payment of taxes, charges, assessments or liens upon the Collateral. No Agent shall be responsible for Collateral or otherwise as to the maintenance of the Collateral, except as expressly provided in the immediately following sentence when such the Collateral Agent has possession of the Collateral. No The Collateral Agent shall have any no duty to the Lenders as to any Collateral in its possession or in the possession of someone under its control or in the possession or control of any agent Collateral Agent or nominee of such the Collateral Agent or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto, except the duty to accord such of the Collateral as may be in its possession substantially the same care as it accords similar its own assets held for the benefit of third parties and the duty to account for monies received by it. No Neither the Collateral Agent nor any officer, the Collateral Agent or representative thereof shall be personally liable for any action taken or omitted to be taken by any such Person in connection with this Agreement or any Loan Document except for such Person's own gross negligence or willful misconduct. In no instance shall the Collateral Agent have any liability for special, consequential or indirect damages or penalties (including lost profits) even if it has been advised of the likelihood of the same, except to the extent arising out of its gross negligence or willful misconduct. Permissive rights, authorities and powers granted to the Collateral Agent under this Agreement or any Loan Documents shall not be construed to be mandatory duties to act. The Collateral Agent shall not be under an obligation independently to request or examine insurance coverage with respect to any Collateral. No .
(b) The Collateral Agent shall not be liable for the acts or omissions of any bank, depositary bank, custodian, independent counsel of the Borrowers Borrower or any other party selected by such the Collateral Agent with reasonable care or selected by any other party hereto that may hold or possess Collateral or documents related to Collateral and such the Collateral Agent shall not be required to monitor the performance of any such Persons holding Collateral. For the avoidance of doubt, no Agent shall be responsible Collateral (except to the Lenders for the perfection of any Lien extent such Person is a co-agent or for the filing, form, content or renewal of any UCC financing statements, fixture filings, mortgages, deeds of trust and such other documents or instruments, provided however that if instructed sub-agent appointed by the Required Lenders and at Collateral Agent). Without prejudice to the expense generality of the Borrowers, the Collateral Agent shall arrange for the filing and continuation, of financing statements or other filing or recording documents or instruments for the perfection of security interests in the Collateral; provided, thatforegoing, the Collateral Agent shall not be responsible liable for any damage or loss resulting from or caused by events or circumstances beyond the preparationCollateral Agent's reasonable control, formincluding nationalization, contentexpropriation, sufficiency currency restrictions, the interruption, disruption or adequacy suspension of the normal procedures and practices of any such financing statements all securities market, power, mechanical, communications or other technological failures or interruptions, computer viruses or the like, acts of which shall be provided in writing to the Collateral Agent by the Required Lenders including the jurisdictions and filing offices where the Collateral Agent is required to file such financing statementswar or terrorism, riots, revolution, acts of God, work stoppages, strikes, national disasters of any kind, or other similar events or acts.
(bc) In connection with the exercise of any rights or remedies in respect of, or foreclosure or realization upon, any real estate-related collateral pursuant to this Agreement or any other Loan Document, the Collateral Agent shall not be obligated to take title to or possession of real estate in its own name, or otherwise in a form or manner that may, in its reasonable judgment, expose it to liability. In the event that the Collateral Agent deems that it may be considered an “"owner or operator” " under any environmental laws or otherwise cause the Collateral Agent to incur, or be exposed to, any environmental liability or any liability under any other federal, state or local law, the Collateral Agent reserves the right, instead of taking such action, either to resign as Collateral Agent subject to the terms and conditions of Section 8.06 or to arrange for the transfer of the title or control of the asset to a court appointed receiver. The Collateral Agent will not be liable to any Person for any environmental liability or any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s 's actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or release or threatened discharge or release of any hazardous materials into the environment.
(cd) In connection with any tax affidavit or similar instrument required to be filed or delivered by the Collateral Agent in connection with any mortgage, the The Collateral Agent shall complete such tax affidavit have no liability for losses arising from (i) any cause beyond its control, (ii) any delay, error, omission or similar instrument pursuant to default of any mail, telegraph, cable or wireless agency or operator, or (iii) the information provided to it in a certificate executed by a Financial Officer acts or edicts of the Companyany government or governmental agency or other group or entity exercising governmental powers. The Collateral Agent shall not be entitled responsible for any special, exemplary, punitive or consequential damages.
(e) The Collateral Agent shall not be responsible for the preparation or filing of any UCC financing statements or the correctness of any financing statements filed in connection with this Agreement or the validity or perfection of any lien or security interest created pursuant to conclusively rely on the information provided to it in such certificate and this Agreement.
(f) The Collateral Agent shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Borrower. The Collateral Agent shall not be required to expend or risk its own funds in the performance of its duties hereunder. Concurrently herewith, the Administrative Agent directs the Collateral Agent and the Collateral Agent is authorized to enter into the Collateral Documents and any other related agreements in the forms presented to the BorrowersCollateral Agent. For the avoidance of doubt, all of the Collateral Agent’s rights, protections and immunities provided herein shall apply to the Collateral Agent for any actions taken or omitted to be taken under any Collateral Documents and any other related agreements in any of its capacities. All protections provided herein shall apply to U.S. Bank National Association in its various capacities hereunder.
(g) It is expressly agreed and acknowledged that the Collateral Agent is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any parties to the Collateral.
(h) If, in performing its duties under this Agreement, the Collateral Agent is required to decide between alternative courses of action, the Collateral Agent may request written instructions from the Required Lenders as to the course of action desired by it. If the Collateral Agent does not receive such instructions within three Business Days after it has requested them, the Collateral Agent may, but shall be under no duty to, take or refrain from taking any such courses of action. The Collateral Agent shall act in accordance with instructions received after such three-Business Day period except to the extent it has already taken, or committed itself to take action inconsistent with such instructions.
(i) The Collateral Agent shall have no liability for any failure, inability or unwillingness on the part of the Borrower to provide accurate and complete information on a timely basis to the Collateral Agent, or otherwise on the part of any such party to comply with the terms of this Agreement, and shall have no liability for any inaccuracy or error in the performance or observance on the Collateral Agent’s part of any of its duties hereunder that is caused by or results from any such inaccurate, incomplete or untimely information received by it, or other Person for its acting in reliance thereonfailure on the part of any such other party to comply with the terms hereof.
Appears in 1 contract
