Security Agent. (a) By accepting a Note, each Holder will be deemed to have, authorized U.S. Bank Trustees Limited to serve as the Security Agent for its benefit and to (i) perform the duties and rights, powers and discretions that are specifically given to it under the Intercreditor Agreement and the Security Documents securing such Indebtedness, together with any other incidental rights, power and discretions; and (ii) execute each relevant Security Document, waiver, modification, amendment, renewal or replacement expressed to be executed by the Security Agent in its name and on its behalf. (b) Subject to the provisions of Article 7, the Security Documents and the Intercreditor Agreement, the Trustee, without the consent of the Holders, on behalf of the Holders, following the occurrence of an Event of Default that is continuing, may or may instruct the Security Agent in writing to take all actions it reasonably determines are necessary in order to (i) enforce any of the terms of the Security Documents or the Intercreditor Agreement; and (ii) collect and receive any and all amounts payable in respect of the Obligations under this Indenture. To the extent permitted by applicable law, only the Security Agent will have the right to enforce the Security Documents on behalf of the Trustee and the Holders. (c) Except as provided in the Intercreditor Agreement or as otherwise directed by a First Lien Representative in accordance with the Intercreditor Agreement, the Security Agent will not be obligated (i) to act upon directions purported to be delivered to it by any Person, including any Holder; (ii) to foreclose upon or otherwise enforce any Lien; or (iii) to take any other action whatsoever with regard to any or all of the Security Documents, the Liens created thereby or the Collateral (d) The provisions of this Section 12.03 are solely for the benefit of the Security 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. Each Holder agrees that any action taken by the Security Agent in accordance with the provision of this Indenture, the Intercreditor Agreement any Additional Intercreditor Agreement and/or the applicable Security Documents, and the exercise by the Security 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 Security Documents, the Intercreditor Agreement and any Additional Intercreditor Agreement, the duties of the Security Agent shall be ministerial and administrative in nature, and the Security Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Security Agent is a party, nor shall the Security Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement or otherwise exist against the Security Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Security 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. (e) The Security Agent may perform any of its duties under this Indenture, the Security Documents or the Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), 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 Security 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. (f) Neither the Security Agent 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 for its own gross negligence or willful misconduct) or under or in connection with any Security Document or the Intercreditor Agreement or any Additional Intercreditor Agreement or the transactions contemplated thereby (except 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 Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related 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 Security Agent under or in connection with, this Indenture, the Security Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement to perform its obligations hereunder or thereunder. Neither the Security Agent nor any of its Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates. (g) The Security 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 other Grantor), independent accountants and/or other experts and advisors selected by the Security Agent. The Security 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. Unless otherwise expressly required hereunder or pursuant to any Security Document, the Security Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreement 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 and, if it so requests, it shall first be indemnified and/or secured to its satisfaction by the Holders 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 Security Agent shall in all cases be fully protected from claims by any Holders in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders. (h) No Security Agent shall be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Security Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Security 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 VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 12.03). (i) The Security 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 Security Agent. If the Security Agent resigns under this Indenture, the Issuer shall appoint a successor security agent. If no successor security agent is appointed prior to the intended effective date of the resignation of the Security Agent (as stated in the notice of resignation), the Security Agent may appoint, after consulting with the 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), a successor security agent. If no successor security 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 Security Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor security agent hereunder, such successor security agent shall succeed to all the rights, powers and duties of the retiring Security Agent, and the term “Security Agent” shall mean such successor security agent, and the retiring Security Agent’s appointment, powers and duties as the Security Agent shall be terminated. After the retiring Security Agent’s resignation hereunder, the provisions of this Section 12.03 shall continue to inure to its benefit and the retiring Security 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 Security Agent under this Indenture.
Appears in 1 contract
Security Agent. (a) By accepting a Note, each Holder will be deemed The following provisions shall apply to have, authorized U.S. Bank Trustees Limited to serve as the Security Agent for its benefit and to (i) perform the duties and rights, powers and discretions that are specifically given to it under the Intercreditor Agreement and the Security Documents securing such Indebtedness, together with any other incidental rights, power and discretions; and (ii) execute each relevant Security Document, waiver, modification, amendment, renewal or replacement expressed to be executed by the Offshore Security Agent in its capacity as trustee in relation to any of the Offshore Security Documents and the Onshore Security Agent in its capacity as agent in relation to any of the Onshore Security Documents.
(a) each of the Offshore Security Agent and the Onshore Security Agent:
(i) may accept without enquiry or objection such title as the Borrower or the relevant Security Provider may have to any assets which are subject to any of the Security Documents to which it is a party and shall not be liable for any lack of or defect in such title, whether apparent or not and whether capable of remedy or not;
(ii) may procure that any investment or all or any part of the property and assets charged or assigned under the Security Documents to which it is a party, or the proceeds thereof, is held and/or registered in the name and on of its behalf.nominee;
(b) Subject neither the Offshore Security Agent nor the Onshore Security Agent:
(i) shall be liable for any omission or delay in giving notice to any third party, or effecting any filing or registration, or obtaining any authorisation, or otherwise perfecting the provisions security constituted by any of Article 7, the Security Documents and to which it is a party;
(ii) shall be obliged to hold any share certificates, title or other documents relating to the Intercreditor Agreement, the Trustee, without the consent assets charged under any of the HoldersSecurity Documents to which it is a party in its own possession or to take any steps to protect or preserve such documents, on behalf and may permit the Borrower or the relevant Security Provider (or its lawyers or representatives) to retain such documents in its possession if it is reasonable in the circumstances;
(c) unless provided otherwise in any Security Document to which it is a party, monies which are received by the Offshore Security Agent or the Onshore Security Agent and held by it as trustee in relation to any of the HoldersSecurity Documents to which it is a party may be invested in its name or under its control in any investment authorised by Hong Kong law for the investment of trust money by trustees or in any other investments which may be selected by it, following and if not otherwise invested such monies may be placed on deposit in its name or under its control at such bank or institution (including the occurrence Offshore Security Agent or the Onshore Security Agent) and upon such terms as it may think fit;
(d) each of an Event of Default that is continuing, the Finance Parties (other than the Offshore Security Agent) authorises the Offshore Security Agent (by itself or by such person(s) as it may or may instruct nominate) to execute and enforce the Security Documents to which it is a party as trustee, as agent or as otherwise provided, and confirms that the Offshore Security Agent in writing shall have an independent right to take all actions release from any Security Document to which it is a party any asset permitted to be disposed of under this Agreement or the relevant Security Document and authorises the Offshore Security Agent to execute any document which is reasonably determines are necessary in order required to achieve the release of any property or asset subject to the relevant Security Document to which it is a party as permitted or required by the terms of this Agreement or the relevant Security Document;
(ie) each of the Finance Parties (other than the Onshore Security Agent) authorises the Onshore Security Agent (by itself or by such person(s) as it may nominate) to execute and enforce the Security Documents to which it is a party as agent or as otherwise provided, and confirms that the Onshore Security Agent shall have an independent right to release from any Security Document to which it is a party any asset permitted to be disposed of under the relevant Security Document and authorises the Onshore Security Agent to execute any document which is reasonably required to achieve the release of any property or asset subject to the relevant Security Document as permitted or required by the terms of the relevant Security Document;
(f) each of the Offshore Security Agent and the Onshore Security Agent may appoint any person established or resident in any jurisdiction (whether a trust corporation or not) to act as a trustee or agent, either separately or jointly with it, in relation to any of the Security Documents to which it is a party if it considers that such an appointment is necessary or desirable for the Intercreditor Agreement; purpose of conforming with any legal requirement in any relevant jurisdiction or otherwise for the purpose of holding, administering, protecting or enforcing any of the Security Documents to which it is a party, and any such trustee or agent shall have such powers and discretions (not exceeding those conferred it) and such obligations as shall be conferred or imposed on it by it;
(g) in relation to any Security Document governed by a law other than Hong Kong or Chinese law, each Finance Party:
(i) shall execute and deliver any Security Document which, under applicable law, cannot be entered into by the Offshore Security Agent on its behalf, for example, because the security constituted by the Security Document must be entered into by it as creditor having a pro rata claim of the claims secured thereby;
(ii) collect and receive any and all amounts payable in respect of shall grant the Obligations under this Indenture. To the extent permitted by applicable law, only the Offshore Security Agent will have power of representation in relation to the right to enforce the Security Documents on behalf of the Trustee execution, enforcement and the Holders.
(c) Except as provided in the Intercreditor Agreement or as otherwise directed by a First Lien Representative in accordance with the Intercreditor Agreement, the Security Agent will not be obligated (i) to act upon directions purported to be delivered to it by any Person, including any Holder; (ii) to foreclose upon or otherwise enforce any Lien; or (iii) to take any other action whatsoever with regard to any or all administration of the Security Documents, the Liens created thereby or the Collateral; and
(diii) The provisions of this Section 12.03 shall enter into such notarial deeds or other deeds or documents as are solely for required under any applicable law relating to the benefit of the Security 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. Each Holder agrees that any action taken security constituted by the Security Agent in accordance with Documents to enable the provision of this Indenture, the Intercreditor Agreement any Additional Intercreditor Agreement and/or the applicable Security Documents, and the exercise by the Offshore Security 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 Security Documents, the Intercreditor Agreement and any Additional Intercreditor Agreement, the duties of the Security Agent shall be ministerial and administrative in nature, and the Security Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Security Agent is a party, nor shall the Security Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement or otherwise exist against the Security Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Security 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.
(e) The Security Agent may perform any of its duties under this Indenture, the Security Documents or the Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), 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 Security Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, another attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(f) Neither the Security Agent 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 for its own gross negligence or willful misconduct) or under or in connection with execute any Security Document or the Intercreditor Agreement or any Additional Intercreditor Agreement or the transactions contemplated thereby (except 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 Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related 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 Security Agent under or in connection with, this Indenture, the Security Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement to perform its obligations hereunder or thereunder. Neither the Security Agent nor any of its Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement or to inspect the properties, books, or records of any Grantor or any Grantoron such Finance Party’s Affiliates.
(g) The Security Agent shall be entitled (in the absence of bad faith) to rely, behalf 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 administer 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/or other experts and advisors selected by the Security Agent. The Security 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. Unless otherwise expressly required hereunder or pursuant to any Security Document, the Security Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreement unless it shall first receive enforce such written advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified and/or secured to its satisfaction by the Holders 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 Security Agent shall in all cases be fully protected from claims by any Holders in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.security;
(h) No Clauses 18.5 to 18.12 shall also apply to each of the Offshore Security Agent shall be deemed to have knowledge or notice of and the occurrence of any Default or Event of Default, unless a Responsible Officer of the Onshore Security Agent shall have received written notice from as if references therein to the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Offshore Security Agent shall take such action with respect to such Default or Event of Default or, as the case may be requested by be, the Trustee in accordance with Article VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 12.03).
(i) The Security 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 Onshore Security Agent. If the Security Agent resigns under this Indenture, the Issuer shall appoint a successor security agent. If no successor security agent is appointed prior to the intended effective date of the resignation of the Security Agent (as stated in the notice of resignation), the Security Agent may appoint, after consulting with the 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), a successor security agent. If no successor security 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 Security Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor security agent hereunder, such successor security agent shall succeed to all the rights, powers and duties of the retiring Security Agent, and the term “Security Agent” shall mean such successor security agent, and the retiring Security Agent’s appointment, powers and duties as the Security Agent shall be terminated. After the retiring Security Agent’s resignation hereunder, the provisions of this Section 12.03 shall continue to inure to its benefit and the retiring Security 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 Security Agent under this Indenture.
Appears in 1 contract
Security Agent. (aA) By accepting a NoteThe Lenders appoint DEUTSCHE PFANDBRIEFBANK AG (as identified in the list of parties herein), each Holder will be deemed which accepts such appointment, to haverepresent them for the purposes of any documents, authorized U.S. Bank Trustees Limited notices and formalities relating to serve as the Security Agent for its benefit and to (i) perform the duties and rights, powers and discretions that are specifically given to it under the Intercreditor Agreement Interests and the Security Documents securing such Indebtedness, together with any other incidental rights, power and discretions; and (ii) execute each relevant Security Document, waiver, modification, amendment, renewal or replacement expressed to be executed by the Security Agent in its name and on its behalfDocuments.
(bB) Subject The Lenders acknowledge that the Security Interests pursuant to the provisions of Article 7, the Security Finance Documents and the Intercreditor Agreement, the Trustee, without the consent of the Holders, shall be granted on behalf of the HoldersLenders, following the occurrence of an Event of Default that is continuing, may or may instruct as represented by the Security Agent in writing to take all actions it reasonably determines are necessary in order to (i) enforce any of the terms of the Security Documents or the Intercreditor Agreement; and (ii) collect and receive any and all amounts payable in respect of the Obligations under this Indenture. To the extent permitted by applicable law, only the Security Agent will have the right to enforce the Security Documents on behalf of the Trustee and the HoldersAgent.
(c) Except as provided in the Intercreditor Agreement or as otherwise directed by a First Lien Representative in accordance with the Intercreditor Agreement, the Security Agent will not be obligated (i) to act upon directions purported to be delivered to it by any Person, including any Holder; (ii) to foreclose upon or otherwise enforce any Lien; or (iii) to take any other action whatsoever with regard to any or all of the Security Documents, the Liens created thereby or the Collateral
(dC) The provisions of this Section 12.03 are solely for the benefit of the Security 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. Each Holder agrees that any action taken by the Security Agent in accordance with the provision of this Indenture, the Intercreditor Agreement any Additional Intercreditor Agreement and/or the applicable Security Documents, and the exercise by the Security 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 Security Documents, the Intercreditor Agreement and any Additional Intercreditor Agreement, the duties of the Security Agent shall be ministerial and administrative in nature, and charged with the administration of the Security Agent shall not have any duties Interests that are or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Security Agent is a party, nor shall the Security Agent have or may be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement or otherwise exist against the Security Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference granted pursuant to the Security 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 partiesFinance Documents.
(eD) The Security Agent may perform any of its duties under this Indenture, the Security Documents or the Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), 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 Security Agent shall not be responsible liable (in the absence of gross or intentional misconduct on its part) for any failure, omission or error affecting the negligence or willful misconduct enforceability of any receiver, agent, employee, attorney-in-fact Security Interest including inter alia:(i) any failure to make any registration or Related Person that it selects as long as such selection was made in good faith.
(f) Neither the Security Agent 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 for its own gross negligence or willful misconduct) or under or filing in connection with any Security Document or the Intercreditor Agreement or any Additional Intercreditor Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct), or Interest; (ii) be responsible in any manner failure to procure or maintain the registration of any Security Interest pursuant to any applicable law governing registration; (iii) any failure to notify to any person the signature of any Security Interest or the procurement of any permission, consent or other power for the purposes of granting any Security Interest.
(E) The Security Agent may accept without investigation the title of any Group Company or any Affiliate to any Asset constituting the subject-matter of a Security Interest.
(F) Each Lender hereby confirms its approval of the Trustee or any Holder for any recitalSecurity Interests and hereby authorises, statement, representation, warranty, covenant or agreement made by the Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related 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 empowers and instructs the Security Agent under (acting either personally or in connection with, this Indenture, through any persons whom it may instruct to do so) to sign and perform the Security Documents or on its behalf, subject in all circumstances to the Intercreditor Agreement, or terms of the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, Agreement and the Security Documents, Documents (as the Intercreditor Agreement or any Additional Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement to perform its obligations hereunder or thereunder. Neither the Security Agent nor any of its Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliatescase may be).
(gG) The Security 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 other Grantor), independent accountants and/or other experts and advisors selected by administer the Security AgentInterests on its own behalf (should it be a beneficiary thereof) and on behalf of the relevant beneficiaries. The Security Agent shall not sign, which each one of the relevant beneficiaries (and to the extent that it may have an interest therein, any other Party hereto) hereby authorises it to do, on its own behalf (should it be bound a beneficiary of the relevant Security Interest) and on behalf of each one of the relevant beneficiaries and any other Party hereto, as the case may be, without it being necessary for the Security Agent to make again consult with or to obtain from any investigation into beneficiary or any other Party hereto any power of attorney or any releases in connection with the facts or matters stated Security Interests (other than those in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. Unless otherwise expressly required hereunder or connection with the Security Interests In Rem) granted pursuant to any Security Document, Document that the Security Agent shall be fully justified is authorised or obliged to grant in failing or refusing to take any action under this Indenture, accordance with the Security Documents or the Intercreditor Agreement unless it shall first receive such written advice or concurrence terms of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified and/or secured to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Agreement.
(H) The Security Agent shall hold, in all cases be fully protected from claims by any Holders in actingthe name and on behalf of the relevant beneficiaries, or in refraining from acting, under this Indenture, each one of the Security Documents (including in particular the documents relating to any notifications to be made to the insurance company or companies pursuant to the Intercreditor Agreement in accordance with a request, direction, instruction or consent provisions of the Trustee or Agreement), other than those documents relating to the Holders of a majority in aggregate principal amount of Security Interests In Rem granted to the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the HoldersLenders.
(hI) No Security Agent shall be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Security Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Security Agent shall take such action with respect to such Default or Event of Default as may be requested by retain the Trustee Security Documents until the repayment in accordance with Article VI or the Holders of a majority in aggregate principal amount full of the Notes sums owed pursuant to the Agreement, it being specified that if, for the purposes of the Pfandbriefen, one or more of the documents held must be physically delivered to an authorised third party (subject the Treuhänder), the relevant Lender(s) undertake to this Section 12.03)return the relevant document(s) to the Security Agent when first requested to do so, for the purposes of the inclusion of any required information and/or with a view to the repayment of the Facility in full or in part, or, more generally, for the purposes of the Agreement and the Finance Documents.
(iJ) The In the event of a conflict between the provisions of the Agreement and/or the Security Agent may resign at any time by notice Documents pertaining to the Trustee and the Issuer, such resignation instructions given to be effective upon the acceptance of a successor agent to its appointment as Security Agent. If the Security Agent resigns under this Indentureor any matter affecting the latter, the Issuer Agreement shall appoint a successor security agent. If no successor security agent is appointed prior take precedence.
(K) The provisions of Clauses 21.1 to 21.10 above shall apply mutatis mutandis to the intended effective date of the resignation of the Security Agent (as stated in the notice of resignation), the Security Agent may appoint, after consulting with the 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), a successor security agent. If no successor security 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 Security Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor security agent hereunder, such successor security agent shall succeed to all the rights, powers and duties of the retiring Security Agent, and the term “Security Agent” shall mean such successor security agent, and the retiring Security Agent’s appointment, powers and duties as the Security Agent shall be terminated. After the retiring Security Agent’s resignation hereunder, the provisions of this Section 12.03 shall continue to inure to its benefit and the retiring Security 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 Security Agent under this Indenture.
Appears in 1 contract
Samples: Credit Agreement (American Realty Capital Global Trust II, Inc.)
Security Agent. (a) By accepting a NoteThe parties hereto acknowledge that for purposes of applicable local law, each Holder will be deemed to have, authorized U.S. Bank Trustees Limited to serve as the Security Agent is required to execute certain Loan Documents in its individual capacity, but always for its the benefit and of the Secured Parties. This notwithstanding, the parties hereto agree that with regard to (i) perform such Loan Documents, the Security Agent shall be subject to the duties and rights, powers and discretions that are specifically given to it under the Intercreditor Agreement and the Security Documents securing such Indebtedness, together with any other incidental rights, power and discretions; and (ii) execute each relevant Security Document, waiver, modification, amendment, renewal or replacement expressed to be executed by responsibilities of the Security Agent and shall be entitled to the rights, protections, exculpations, benefits and indemnities set forth in its name and on its behalfthis Agreement.
(b) Subject to the provisions of Article 7, the Security Documents and the Intercreditor In accordance with this Agreement, the TrusteeSecured Parties have appointed MBL, without the consent of the Holdersnot in its individual capacity, on behalf of the Holdersbut solely as security agent, following the occurrence of an Event of Default that to act as Security Agent hereunder and under each other Loan Document to which it is continuing, may or may instruct becomes a party with such powers as are expressly delegated to the Security Agent in writing to take all actions it reasonably determines are necessary in order to (i) enforce any of by the terms of the Security Documents or the Intercreditor Agreement; and (ii) collect and receive any and all amounts payable in respect of the Obligations under this Indenture. To the extent permitted by applicable law, only the Security Agent will have the right to enforce the Security Documents on behalf of the Trustee Agreement and the Holders.
(c) Except as provided in the Intercreditor Agreement or as otherwise directed by a First Lien Representative in accordance with the Intercreditor Agreement, the Security Agent will not be obligated (i) to act upon directions purported to be delivered to it by any Person, including any Holder; (ii) to foreclose upon or otherwise enforce any Lien; or (iii) to take any other action whatsoever with regard to any or all of the Security Loan Documents, the Liens created thereby or the Collateral
(d) together with such other powers as are reasonably incidental thereto. The provisions of this Section 12.03 are solely for the benefit of the Security 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. Each Holder agrees that any action taken by the Security Agent in accordance with the provision of this Indenture, the Intercreditor Agreement any Additional Intercreditor Agreement and/or the applicable Security Documents, and the exercise by the Security 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 Security Documents, the Intercreditor Agreement and any Additional Intercreditor Agreement, the duties of the Security Agent shall be ministerial and administrative in nature, and the Security Agent shall not have any duties or responsibilities, responsibilities except those expressly set forth herein in, and in no implied covenants or obligations shall be read into, this Agreement or the other Notes Loan Documents to which the Security Agent it is or becomes a party. MBL, nor not in its individual capacity, but solely as security agent, hereby agrees to and accepts such appointment.
(c) In no event shall the Security Agent have be liable (i) for acting in accordance with or be deemed to have conclusively relying upon any trust instruction, notice, demand, certificate or other fiduciary relationship document from the Borrower and the Administrative Agent or any entity acting on behalf of the Borrower or the Administrative Agent given in accordance with the TrusteeLoan Documents, (ii) for any Holder indirect, consequential, punitive or special damages, regardless of the form of action and whether or not any such damages were foreseeable or contemplated, (iii) for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians appointed by it with due care except as related to the Collateral and realization on the Collateral, (iv) for the investment or reinvestment of any cash held by it hereunder, in each case in good faith, in accordance with the terms hereof, including any liability for any delays in the investment or reinvestment of the Collateral, or any Grantorloss of interest or income incident to any such delays, or (v) for an amount in excess of the value of the Collateral except to the extent of direct money damages (the Security Agent hereby confirming that proceeds from Collateral in excess of the Obligations shall be refunded to the Borrower), and no implied covenantsexcept in each case described in clause (i)-(v), functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement or otherwise exist against if caused by the Security Agent. Without limiting ’s gross negligence or willful misconduct or breach in bad faith.
(d) The Security Agent shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the generality control of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Security Agent is (including but not intended limited to connote any fiduciary act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other implied (wire 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 partiescommunication facility).
(e) The Security Agent may perform shall not be responsible in any respect for the form, execution, validity, value or genuineness of its duties documents or securities deposited under this Indentureany Loan Document, or for any description therein, or for the identity or authority of Persons (other than the Security Documents Agent or the Intercreditor Agreement by anyone acting on its behalf) executing or through receiversdelivering or purporting to execute or deliver any such document, agents, employees, attorneys-in-fact security or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), 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 counselendorsement. The Security Agent shall not be responsible for called upon to advise any party as to the negligence wisdom in selling or willful misconduct of retaining or taking or refraining from any receiver, agent, employee, attorney-in-fact action with respect to any securities or Related Person that it selects as long as such selection was made in good faithother property deposited under any Loan Document.
(f) Neither The Security Agent shall not be under any duty to give the Collateral held by it under the Loan Documents any greater degree of care than it gives its own similar property and shall not be required to invest any funds held by it except to the extent the Security Agent nor any would invest its own funds exercising the same degree of care that the Security Agent holds toward the investment and management of its Related Persons shall own funds.
(ig) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or In the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Security Document or the Intercreditor Agreement or any Additional Intercreditor Agreement or the transactions contemplated thereby (except 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 Issuer or any other Grantor or Affiliate event of any Grantor, ambiguity or any Officer or Related Person thereof, contained in this Indenture, or any other Notes Documents, uncertainty hereunder or in any certificatenotice, report, statement instruction or other document referred to or provided for in, or communication received by the Security Agent under or in connection with, this Indenture, the Security Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement to perform its obligations hereunder or thereunder. Neither the Security Agent nor any of its Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(g) The Security 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 other Grantor), independent accountants and/or other experts and advisors selected by the Security Agent. The Security 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. Unless otherwise expressly required hereunder or pursuant to any Security Loan Document, the Security Agent shall be fully justified may, in failing or refusing to take its sole discretion, refrain from taking any action under this Indentureother than to retain possession of the Collateral, unless the Security Documents or the Intercreditor Agreement unless it shall first receive such Agent receives written advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines andinstructions, if it so requests, it shall first be indemnified and/or secured to its satisfaction signed by the Holders against any and all liability and expense Administrative Agent, which may be incurred by it by reason of taking eliminates such ambiguity or continuing to take any such action. The Security Agent shall in all cases be fully protected from claims by any Holders in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holdersuncertainty.
(h) No Security Agent shall be deemed to have knowledge or notice of the occurrence Notwithstanding any other provision of any Default or Event of DefaultLoan Document to the contrary, unless a Responsible Officer of the Security Agent shall have received written notice from the Trustee is not obliged to do or the Issuer referring omit to this Indenturedo anything if it would, describing such Default or Event might in its reasonable opinion, constitute a breach of Default and stating that such notice is any law or regulation or a “notice of default.” The Security 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 VI or the Holders breach of a majority in aggregate principal amount fiduciary duty or duty of the Notes (subject to this Section 12.03)confidentiality.
(i) The Security Agent may resign at Notwithstanding any time by notice provision of any Loan Document to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Security Agent. If the Security Agent resigns under this Indenture, the Issuer shall appoint a successor security agent. If no successor security agent is appointed prior to the intended effective date of the resignation of the Security Agent (as stated in the notice of resignation)contrary, the Security Agent may appoint, after consulting with the Trustee, subject is not obliged to the consent of the Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor security agent. If no successor security 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 expend or risk its own funds or otherwise incur any financial liability in the notice of resignation) the Security Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance performance of its appointment as successor duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security agent hereunderfor, such successor security agent shall succeed risk or liability is not reasonably assured to all the rights, powers and duties of the retiring Security Agent, and the term “Security Agent” shall mean such successor security agent, and the retiring Security Agent’s appointment, powers and duties as the Security Agent shall be terminated. After the retiring Security Agent’s resignation hereunder, the provisions of this Section 12.03 shall continue to inure to its benefit and the retiring Security 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 Security Agent under this Indentureit.
Appears in 1 contract
Security Agent. (a) By accepting a Note, each Holder will be deemed to have, authorized U.S. Bank Trustees Limited to serve as the The Security Agent for its benefit and every Receiver and Delegate may, in priority to (i) perform any payment to the duties Secured Parties, indemnify itself out of the Collateral in respect of, and rightspay and retain, powers all sums necessary to give effect to the indemnity in this Clause 11.4 and discretions that are specifically given to it under shall have a lien on the Intercreditor Agreement Transaction Security and the proceeds of the enforcement of the Transaction Security Documents securing such Indebtedness, together with any other incidental rights, power and discretions; and (ii) execute each relevant Security Document, waiver, modification, amendment, renewal or replacement expressed for all moneys payable to be executed by the Security Agent in its name and on its behalfit.
(b) Subject The Chargor shall promptly on demand pay or reimburse the Security Agent the amount of all costs and expenses (including legal fees) reasonably incurred by it and which are properly documented in connection with:
(i) the negotiation, preparation, printing and execution of this Debenture and any other documents referred to in this Debenture;
(ii) its responding to, evaluating, negotiating or complying with any request or requirement to amend this Debenture;
(iii) acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;
(iv) the taking, holding, protection or enforcement of the Transaction Security, the exercise of any of the rights, powers, discretions, authorities and remedies vested in the Security Agent and each Receiver and Delegate by the Finance Documents or by law;
(v) any default by the Chargor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents;
(vi) the administration or release of any Security created pursuant to this Debenture; and
(vii) acting as Security Agent, Receiver or Delegate under the Finance Documents or which otherwise relates to any of the Collateral (otherwise, in each case, than by reason of the relevant Security Agent's, Receiver's or Delegate's gross negligence or wilful misconduct).
(c) Any amount payable to the provisions Security Agent under this Clause 11.4 (Security Agent) or as set out in this Debenture shall include the cost of Article 7utilising its management time or other resources and will be calculated on the basis of such reasonable daily or hourly rates as it may notify to the Chargor, and is in addition to any other fee paid or payable to it.
(d) The Chargor shall supply to the Security Documents Agent such information as the Security Agent may reasonably require about the Collateral and compliance of the Intercreditor Agreement, Chargor with the Trustee, terms of this Debenture.
(e) An amendment or waiver which relates to the rights or obligations of the Security Agent under any Finance Document may not be effected without the consent of the Holders, on behalf of the Holders, following the occurrence of an Event of Default that is continuing, may or may instruct the Security Agent in writing to take all actions it reasonably determines are necessary in order to (i) enforce any of the terms of the Security Documents or the Intercreditor Agreement; and (ii) collect and receive any and all amounts payable in respect of the Obligations under this Indenture. To the extent permitted by applicable law, only the Security Agent will have the right to enforce the Security Documents on behalf of the Trustee and the Holders.
(c) Except as provided in the Intercreditor Agreement or as otherwise directed by a First Lien Representative in accordance with the Intercreditor Agreement, the Security Agent will not be obligated (i) to act upon directions purported to be delivered to it by any Person, including any Holder; (ii) to foreclose upon or otherwise enforce any Lien; or (iii) to take any other action whatsoever with regard to any or all of the Security Documents, the Liens created thereby or the Collateral
(d) The provisions of this Section 12.03 are solely for the benefit of the Security 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. Each Holder agrees that any action taken by the Security Agent in accordance with the provision of this Indenture, the Intercreditor Agreement any Additional Intercreditor Agreement and/or the applicable Security Documents, and the exercise by the Security 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 Security Documents, the Intercreditor Agreement and any Additional Intercreditor Agreement, the duties of the Security Agent shall be ministerial and administrative in nature, and the Security Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Security Agent is a party, nor shall the Security Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement or otherwise exist against the Security Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Security 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.
(e) The Security Agent may perform any of its duties under this Indenture, the Security Documents or the Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), 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 Security 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.
(f) Neither the Security Agent 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 for its own gross negligence or willful misconduct) or under or in connection with any Security Document or the Intercreditor Agreement or any Additional Intercreditor Agreement or the transactions contemplated thereby (except 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 Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related 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 Security Agent under or in connection with, this Indenture, the Security Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement to perform its obligations hereunder or thereunder. Neither the Security Agent nor any of its Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(g) The Security 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 other Grantor), independent accountants and/or other experts and advisors selected by the Security Agent. The Security 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. Unless otherwise expressly required hereunder or pursuant to any Security Document, the Security Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreement 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 and, if it so requests, it shall first be indemnified and/or secured to its satisfaction by the Holders 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 Security Agent shall in all cases be fully protected from claims by any Holders in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(h) No Security Agent shall be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Security Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Security 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 VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 12.03).
(i) The Security 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 Security Agent. If the Security Agent resigns under this Indenture, the Issuer shall appoint a successor security agent. If no successor security agent is appointed prior to the intended effective date of the resignation of the Security Agent (as stated in the notice of resignation), the Security Agent may appoint, after consulting with the 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), a successor security agent. If no successor security 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 Security Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor security agent hereunder, such successor security agent shall succeed to all the rights, powers and duties of the retiring Security Agent, and the term “Security Agent” shall mean such successor security agent, and the retiring Security Agent’s appointment, powers and duties as the Security Agent shall be terminated. After the retiring Security Agent’s resignation hereunder, the provisions of this Section 12.03 shall continue to inure to its benefit and the retiring Security 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 Security Agent under this Indenture.
Appears in 1 contract
Security Agent. (a) By accepting a Note, each Holder will be deemed to have, authorized U.S. Bank Trustees Limited to serve as the The Security Agent for its benefit agrees to take instructions from the Trustee in accordance with this Indenture with respect thereto and agrees to (i) perform the duties and rights, powers and discretions that are specifically given to it act as a collateral agent under the Intercreditor Agreement and the Security Documents securing such Indebtedness, together with any other incidental rights, power and discretions; and (ii) execute each relevant Security Document, waiver, modification, amendment, renewal or replacement expressed to be executed by the Security Agent in its name for and on its behalfbehalf of the Holders.
(b) Subject Each Holder of a Note, by its acceptance thereof, consents and agrees:
(1) to the provisions of Article 7, the Security Documents and the Intercreditor Agreement, the Trustee, without the consent of the Holders, on behalf of the Holders, following the occurrence of an Event of Default that is continuing, may or may instruct the Security Agent in writing to take all actions it reasonably determines are necessary in order to (i) enforce any of the terms of the Security Documents (including, without limitation, the provisions providing for foreclosure, release, amendments and re-filings of Collateral) as the same may be in effect or the Intercreditor Agreement; may be amended from time to time in accordance with its terms and (ii) collect authorizes and receive any and all amounts payable in respect of the Obligations under this Indenture. To the extent permitted by applicable law, only directs the Security Agent will have the right to enforce enter into the Security Documents on behalf and to perform its obligations and exercise its rights thereunder in accordance therewith; and
(2) that the Security Agent shall be entitled to the rights, privileges, protections, immunities, indemnities and benefits provided to the Security Agent by the Security Documents. Furthermore, each Holder of a Note, by accepting such Note, agrees, acknowledges and consents to the terms (including, but not limited to, waivers, representations and covenants) of and authorizes and directs the Trustee (in each of its capacities) and the HoldersSecurity Agent to enter into and perform the Security Documents in each of its capacities thereunder.
(c) Except as provided in the Intercreditor Agreement The Trustee has conducted no due diligence or as otherwise directed by a First Lien Representative in accordance investigation with the Intercreditor Agreement, respect to the Security Agent will not be obligated (i) or its ability to act upon directions purported to be delivered to it by perform its required duties and accepts no responsibility or liability for any Personacts, including any Holder; (ii) to foreclose upon omissions or otherwise enforce any Lien; or (iii) to take any other action whatsoever with regard to any or all defaults of the Security Documents, the Liens created thereby or the CollateralAgent.
(d) The provisions of this Section 12.03 are solely for the benefit of the Security Agent shall be obligated to perform such duties and none of only such duties as are specifically set forth in this Indenture and 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. Each Holder agrees that any action taken by the Security Agent in accordance with the provision of this Indenture, the Intercreditor Agreement any Additional Intercreditor Agreement and/or the applicable Security Documents, and the exercise by the Security 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 Security Documents, the Intercreditor Agreement and any Additional Intercreditor Agreement, the duties of the Security Agent shall be ministerial and administrative in nature, and the Security Agent shall not have any no implied duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Security Agent is a party, nor shall the Security Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities obligation shall be read into this Indenture, Indenture and the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement or otherwise exist Documents against the Security Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Security 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.
(e) The Security Agent may perform any of its duties under this Indenture, the Security Documents or the Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), 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 Security 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.
(f) Neither the Security Agent nor any of its Related Persons respective officers, directors, employees or agents shall be obliged to:
(i1) be liable for make any action taken enquiry as to any breach or omitted to be taken default by the Company or any Subsidiary Guarantor in the performance or observance of any of them under or in connection with the provisions of this Indenture or the transactions contemplated hereby Security Documents or as to the existence of a Default or an Event of Default; or
(except 2) do anything (including, without limitation, disclosing any document or information) which would, or might in its opinion, be contrary to any law or regulation or be a breach of any duty of confidentiality or otherwise be actionable or render it liable to any person; or
(3) account to any person for any sum or the profit element of any sum received by it for its own gross negligence or willful misconductaccount.
(f) or under or in connection with any The Security Document or Agent shall hold the Intercreditor Agreement or any Additional Intercreditor Agreement or the transactions contemplated thereby (except relevant Collateral for its own gross negligence or willful misconduct), or (ii) be responsible in any manner to any and on behalf of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by Holders and not as an agent of the Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained Trustee. Notwithstanding anything to the contrary in this Indenture, there is no principal-agent, trustee-beneficiary or any other Notes Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by fiduciary relationship between the Security Agent under and the Trustee and, for the avoidance of doubt, the Security Agent has no authority to enter into contractual obligations on behalf of the Trustee. Neither the Trustee nor the Security Agent will be responsible for and make any representation or in connection withwarranty as to the validity, this Indenture, legality or enforceability of the Note Guarantees or the Security Documents or as to the Intercreditor Agreement, correctness of any statement or recital herein or any statement in the validity, effectiveness, genuineness, enforceability Note Guarantees or sufficiency of this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement to perform its obligations hereunder or thereunder. Neither the Security Agent nor any of its Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(g) The Security Agent shall be entitled (in may decline to foreclose on the absence of bad faith) Collateral or exercise remedies available if it does not receive indemnification and/or security to relyits satisfaction. In addition, 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/or other experts and advisors selected by the Security Agent. The Security Agent shall not ’s ability to foreclose on the Collateral may be bound subject 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. Unless otherwise expressly required hereunder or pursuant to any Security Documentlack of perfection, the Security Agent shall be fully justified in failing or refusing to take any action under this Indentureconsent of third parties, prior Liens and practical problems associated with the realization of the Security Documents or Agent’s Liens on the Intercreditor Agreement 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 and, if it so requests, it shall first be indemnified and/or secured to its satisfaction by the Holders 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 Security Agent shall in all cases be fully protected from claims by any Holders in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the HoldersCollateral.
(h) No Security Agent shall be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Security Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Security 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 VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 12.03).
(i) The Security 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 Security Agent. If the Security Agent resigns under this Indenture, the Issuer shall appoint a successor security agent. If no successor security agent is appointed prior to the intended effective date of the resignation of the Security Agent (as stated in the notice of resignation), the Security Agent may appoint, after consulting with the 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), a successor security agent. If no successor security 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 Security Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor security agent hereunder, such successor security agent shall succeed to all the rights, powers and duties benefit of the retiring Security Agentprovisions affording protection to the Trustee contained in clauses (c), (e) and (f) of Section 7.01, clauses (a), (b), (d), (e) and (f) of Section 7.02 and Section 7.07 (subject in each case to the limitations and qualifications related to such protection, and to the term standard of care set forth in clause (c) of Section 7.01) as if references to “Security Agentthe Indenture” shall mean in such successor security agent, and provisions were references to the retiring Security Agent’s appointment, powers and duties as Indenture and/or the Security Agent shall be terminated. After the retiring Security Agent’s resignation hereunder, the provisions of this Section 12.03 shall continue to inure to its benefit and the retiring Security 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 Security Agent under this IndentureDocuments.
Appears in 1 contract
Samples: Indenture (UTAC Holdings Ltd.)
Security Agent. (a) By accepting a Note, The Issuer and each Holder will be deemed to have, authorized U.S. Bank Trustees Limited to serve as of the Holders by acceptance of the Notes hereby designates and appoints the Security Agent for as its benefit and to (i) perform the duties and rights, powers and discretions that are specifically given to it agent under the Intercreditor Agreement and the Security Documents securing such Indebtedness, together with any other incidental rights, power and discretions; and (ii) execute each relevant Security Document, waiver, modification, amendment, renewal or replacement expressed to be executed by the Security Agent in its name and on its behalf.
(b) Subject to the provisions of Article 7this Indenture, the Security Documents and the Intercreditor Agreement, and the Trustee, without the consent Issuer and each of the Holders, on behalf Holders by acceptance of the Holders, following the occurrence of an Event of Default that is continuing, may or may instruct Notes hereby irrevocably authorizes the Security Agent in writing to take all actions it reasonably determines such action on its behalf under the provisions of this Indenture, the Security Documents and the Intercreditor Agreement and to exercise such powers and perform such duties as are necessary in order expressly delegated to (i) enforce any the Security Agent by the terms of this Indenture, the Security Documents and the Intercreditor Agreement, and consents and agrees to the terms of the Security Documents or the Intercreditor Agreement; and (ii) collect and receive any and all amounts payable in respect of the Obligations under this Indenture. To the extent permitted by applicable law, only the Security Agent will have the right to enforce the Security Documents on behalf of the Trustee and the Holders.
(c) Except as provided in the Intercreditor Agreement and each Security Document, as the same may be in effect or as may be amended, restated, supplemented or otherwise directed by a First Lien Representative modified from time to time in accordance with the Intercreditor Agreement, the their respective terms. The Security Agent will not be obligated (i) agrees to act upon directions purported to be delivered to it by any Person, including any Holder; (ii) to foreclose upon or otherwise enforce any Lien; or (iii) to take any other action whatsoever with regard to any or all of as such on the Security Documents, the Liens created thereby or the Collateral
(d) The provisions of express conditions contained in this Section 12.03 are solely for the benefit of the Security 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 herein12.07. Each Holder agrees that any action taken by the Security Agent in accordance with the provision of this Indenture, the Intercreditor Agreement any Additional Intercreditor Agreement and/or and the applicable Security Documents, and the exercise by the Security 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 Security Documents, Documents and the Intercreditor Agreement and any Additional Intercreditor Agreement, the duties of the Security Agent shall be ministerial and administrative in nature, and the Security Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Security Documents and the Intercreditor Agreement to which the Security Agent is a party, nor shall the Security Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents, Documents and the Intercreditor Agreement or any Additional Intercreditor Agreement or otherwise exist against the Security Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Security 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.
(eb) The Security Agent may perform any of its duties under this Indenture, the Security Documents or the Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), 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 Security 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.
(fc) Neither None of the Security Agent nor 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 for its own gross negligence or willful misconduct) or under or in connection with any Security Document or the Intercreditor Agreement or any Additional Intercreditor Agreement or the transactions contemplated thereby (except 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 Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related 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 Security Agent under or in connection with, this Indenture, the Security Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents, Documents or the Intercreditor Agreement or any Additional Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Security Documents, Documents or the Intercreditor Agreement or any Additional Intercreditor Agreement to perform its obligations hereunder or thereunder. Neither None of the Security Agent nor or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents, Documents or the Intercreditor Agreement or any Additional Intercreditor Agreement or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(gd) The Security 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 other Grantor), independent accountants and/or and other experts and advisors selected by the Security Agent. The Security 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. Unless otherwise expressly required hereunder or pursuant to any Security Document, the The Security Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreement 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 and, if it so requests, it shall first be indemnified and/or secured to its reasonable satisfaction by the Holders 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 Security Agent shall in all cases be fully protected from claims by any Holders in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(he) No The Security 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 Security Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Security 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 VI 6 or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 12.0312.07).
(if) The Security 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 Security Agent. If the Security Agent resigns under this Indenture, the Issuer shall appoint a successor security agentSecurity Agent. If no successor security agent Security Agent is appointed prior to the intended effective date of the resignation of the Security 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 then outstanding, may appoint a successor Security Agent may appoint, after consulting with the TrusteeAgent, subject to the consent of the Issuer Company (which consent shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor security agent. If no successor security agent Security 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 Security Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor security agent Security Agent hereunder, such successor security agent Security Agent shall succeed to all the rights, powers and duties of the retiring Security Agent, and the term “Security Agent” shall mean such successor security agentSecurity Agent, and the retiring Security Agent’s appointment, powers and duties as the Security Agent shall be terminated. After the retiring Security Agent’s resignation hereunder, the provisions of this Section 12.03 12.07 shall continue to inure to its benefit and the retiring Security 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 Security Agent under this Indenture.
Appears in 1 contract
Security Agent. (a) By accepting The Security Agent is hereby appointed for the benefit of the Holders of the Notes and is hereby authorized to enter into the Security Documents and to take such actions on their behalf under the provisions of the Security Documents and to exercise such powers and perform such duties as are expressly delegated to the Security Agent by the terms of this Indenture and the Security Documents, together with such powers as are reasonably incidental thereto. Each Holder, by its acceptance of a Note, each Holder will be is deemed to have, authorized U.S. Bank Trustees Limited have consented and agreed to serve as the Security Agent for its benefit and to (i) perform the duties and rights, powers and discretions that are specifically given to it under the Intercreditor Agreement and the Security Documents securing such Indebtedness, together with any other incidental rights, power and discretions; and (ii) execute terms of each relevant Security Document, waiveras originally in effect and as amended, modificationrestated, amendmentreplaced, renewal supplemented or replacement expressed modified from time to be executed by time in accordance with its terms and the Security Agent in its name and on its behalfterms of this Indenture.
(b) Subject to the provisions terms of Article 7this Indenture, the Quota Pledge Agreements, and the Intercreditor Agreements, the Security Documents Agent (directly or through its subagents) shall hold and the Intercreditor Agreement, the Trustee, without the consent of the Holders, be entitled to enforce on behalf of the HoldersHolders of Notes, following all Liens on the occurrence of an Event of Default that is continuing, may or may instruct the Security Agent in writing to take all actions it reasonably determines are necessary in order to (i) enforce any of the terms of the Security Documents or the Intercreditor Agreement; and (ii) collect and receive any and all amounts payable in respect of the Obligations under this Indenture. To the extent permitted by applicable law, only the Security Agent will have the right to enforce the Security Documents on behalf of the Trustee and the HoldersCollateral.
(c) Except as provided in All of the Intercreditor Agreement or as otherwise directed by a First Lien Representative in accordance with rights, protections, benefits, privileges, indemnities and immunities granted to the Intercreditor Agreement, Trustee hereunder shall inure to the benefit of the Security Agent will not (including each subagent duly appointed by it).
(d) The Security Agent shall be obligated authorized to appoint subagents as necessary in its sole discretion and any such appointment shall be reflected in documentation (i) which the Security Agent is hereby authorized to act enter into). Except as otherwise explicitly provided herein or in the Security Documents, no Security 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 directions purported any of the Collateral or for any delay in doing so or shall be under any obligation to be delivered to it by any Person, including any Holder; (ii) to foreclose upon sell or otherwise enforce dispose of any Lien; Collateral upon the request of any other Person or (iii) to take any other action whatsoever with regard to the Collateral or any or all of the Security Documents, the Liens created thereby or the Collateral
(d) The provisions of this Section 12.03 are solely for the benefit of the Security 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 hereinpart thereof. Each Holder agrees that any action taken by the Security Agent in accordance with the provision of this Indenture, the Intercreditor Agreement any Additional Intercreditor Agreement and/or the applicable Security Documents, and the exercise by the Security 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 Security Documents, the Intercreditor Agreement and any Additional Intercreditor Agreement, the duties of the Security Agent shall be ministerial and administrative in natureaccountable only for amounts that it actually receives as a result of the exercise of such powers, and the Security Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Security Agent is a party, nor shall the Security Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement or otherwise exist against the Security Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Security 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.
(e) The Security Agent may perform any of its duties under this Indenture, the Security Documents or the Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), 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 Security 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.
(f) Neither neither the Security Agent nor any of its Related Persons respective officers, directors, employees or agents shall (i) be liable responsible for any action taken act or omitted failure to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (act, except for its own gross negligence or willful misconduct) or under or in connection with any Security Document or the Intercreditor Agreement or any Additional Intercreditor Agreement or the transactions contemplated thereby (except 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 misconduct as determined by the Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related 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 Security Agent under or in connection with, this Indenture, the Security Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement to perform its obligations hereunder or thereunder. Neither the Security Agent nor any of its Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(g) The Security 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 other Grantor), independent accountants and/or other experts and advisors selected by the Security Agent. The Security 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. Unless otherwise expressly required hereunder or pursuant to any Security Document, the Security Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreement 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 and, if it so requests, it shall first be indemnified and/or secured to its satisfaction by the Holders 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 Security Agent shall in all cases be fully protected from claims by any Holders in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(h) No Security Agent shall be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Security Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Security 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 VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 12.03).
(i) The Security 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 Security Agent. If the Security Agent resigns under this Indenture, the Issuer shall appoint a successor security agent. If no successor security agent is appointed prior to the intended effective date of the resignation of the Security Agent (as stated in the notice of resignation), the Security Agent may appoint, after consulting with the 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), a successor security agent. If no successor security 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 Security Agent shall be entitled to petition a court of competent jurisdiction in a final, non-appealable decision.
(e) Without limiting the foregoing, in relation to appoint a successor. Upon Swiss law-governed Security Documents, including the Initial Quota Pledge Agreements and any Additional Quota Pledge Agreements governed by Swiss law (collectively, the “Swiss Security Documents”), each present and future Holder, by its acceptance of its appointment as successor security agent hereundera Note, such successor security agent shall succeed is deemed to all the rights, powers have consented and duties of the retiring Security Agent, and the term “Security Agent” shall mean such successor security agent, and the retiring Security Agent’s appointment, powers and duties as agreed that:
(i) the Security Agent shall holds: (1) any security created or evidenced or expressed to be terminated. After created or evidenced under or pursuant to a Swiss Security Document by way of a security assignment (Sicherungsabtretung) or transfer for security purposes (Sicherungsübereignung) or any other non-accessory (nicht akzessorische) security, and (2) any proceeds and other benefits of such security, as fiduciary (treuhänderisch) in its own name but for the retiring account of all relevant Holders which have the benefit of such security in accordance with this Indenture and the respective Swiss Security Document; and each present and future Holder hereby agrees that the Security Agent enters into any such Swiss Security Document as fiduciary (treuhänderisch) in its own name for the benefit of the Holders; and
(ii) it authorizes the Security Agent’s resignation hereunder: (1) to (A) accept and execute as its direct representative (direkter Stellvertreter) any Swiss law pledge or any other Swiss law accessory (akzessorische) security created or evidenced or expressed to be created or evidenced under or pursuant to a Swiss Security Document for the benefit of such Holder and (B) hold, administer and, if necessary, enforce any such security as direct representative, (direkter Stellvertreter) on behalf of each relevant Holder which has the provisions benefit of such security; (2) to agree as its direct representative (direkter Stellvertreter) to amendments and alterations to any Swiss Security Document which creates or evidences or expressed to create or evidence a pledge or any other Swiss law accessory (akzessorische) security; (3) to effect as its direct representative (direkter Stellvertreter) any release of a security created or evidenced or expressed to be created or evidenced under a Swiss Security Document in accordance with this Section 12.03 shall continue to inure to its benefit Indenture and the retiring respective Swiss Security Agent shall not by reason of Document; and (4) to exercise as its direct representative (direkter Stellvertreter) such resignation be deemed other rights granted to be released from liability as to any actions taken or omitted to be taken by it while it was the Security Agent under this IndentureIndenture and under the relevant Swiss Security Document.
Appears in 1 contract
Samples: Indenture (Gran Tierra Energy Inc.)
Security Agent. (a) By accepting a Note, each Holder will be deemed to have, authorized U.S. Bank Trustees Limited to serve as the The Security Agent for its benefit and to (i) perform shall have all the duties and rights, powers benefits, privileges, powers, protections, indemnities and discretions that are specifically given to it under the Intercreditor Agreement and immunities provided in the Security Documents securing such Indebtedness, together with any other incidental and shall have all of the rights, power benefits, privileges, powers, protections, indemnities and discretions; and (ii) execute each relevant Security Documentimmunities provided to the Trustee under this Indenture, waiver, modification, amendment, renewal or replacement expressed to be executed by the Security Agent in its name and on its behalfincluding under Article VIII hereof.
(b) Subject to the provisions None of Article 7, the Security Documents and the Intercreditor AgreementAgent, the Trustee, without the consent Paying Agent, the Registrar or any of their respective officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the HoldersSecurity Documents, on behalf for the creation, perfection, priority, sufficiency or protection of any Liens securing the HoldersNotes Obligations, following or any defect or deficiency as to any such matters, nor shall the occurrence of an Event of Default that is continuing, may Trustee or may instruct the Security Agent in writing to take all actions it reasonably determines are necessary in order to (i) enforce any of the terms of the Security Documents or the Intercreditor Agreement; and (ii) collect and receive any and all amounts payable in respect of the Obligations under this Indenture. To the extent permitted by applicable law, only the Security Agent will have the right to enforce the Security Documents on behalf of the Trustee and the Holdersbe responsible for filing financing statements.
(c) Except Subject to the Security Documents, the Trustee shall direct the Security Agent from time to time. Subject to the Security Documents, except as provided in the Intercreditor Agreement or as otherwise directed by a First Lien Representative in accordance with the Intercreditor AgreementTrustee as required or permitted by this Indenture and any other representatives, the Holders acknowledge that the Security Agent will not be obligated obligated:
(i) to act upon directions purported to be delivered to it by any other Person, including any Holder; ;
(ii) to foreclose upon or otherwise enforce any LienLiens securing the Notes Obligations; or or
(iii) to take any other action whatsoever with regard to any or all of the Liens securing the Notes Obligations, Security Documents, the Liens created thereby Documents or the Collateral.
(d) The provisions of this Section 12.03 are solely for If the Company (i) incurs any ABL Obligations at any time when the ABL Intercreditor Agreement is not in effect or at any time when Debt constituting ABL Obligations entitled to the benefit of the ABL Intercreditor Agreement is concurrently retired, and (ii) at any time when the Trustee is not the Security Agent and none of Agent, directs 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. Each Holder agrees that any action taken by Trustee to deliver to the Security Agent in accordance with the provision of this Indenturean Officers’ Certificate so stating and requesting, the Intercreditor Agreement or at any Additional Intercreditor Agreement and/or the applicable Security Documentsother time directs, and the exercise by that the Security Agent enter into an intercreditor agreement (on substantially the same terms as the ABL Intercreditor Agreement in effect on the Issue Date) with a designated agent or representative for the holders 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 IndentureABL Obligations so incurred, the Security Documents, the Intercreditor Agreement and any Additional Intercreditor Agreement, the duties of the Security Agent shall be ministerial and administrative in nature, and the Security Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which Holders acknowledge that the Security Agent is a partyhereby authorized and directed to enter into such intercreditor agreement, nor shall bind the Security Agent have or be deemed to have any trust or other fiduciary relationship with Holders on the Trustee, any Holder or any Grantor, terms set forth therein and no implied covenants, functions, responsibilities, duties, perform and observe its obligations or liabilities shall be read into this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement or otherwise exist against the Security Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Security 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 partiesthereunder.
(e) The Security Agent may perform any will be accountable only for amounts that it actually receives as a result of its duties under this Indenture, the enforcement of Liens securing the Notes Obligations or the Security Documents or the Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), 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 Security 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 faithDocuments.
(f) Neither the Security Agent 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 for its own gross negligence or willful misconduct) or under or in connection with any Security Document or the Intercreditor Agreement or any Additional Intercreditor Agreement or the transactions contemplated thereby (except 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 Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related 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 Security Agent under or in connection with, this Indenture, the Security Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement to perform its obligations hereunder or thereunder. Neither the Security Agent nor any of its Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(g) The Security 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 other Grantor), independent accountants and/or other experts and advisors selected by the Security Agent. The Security 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. Unless otherwise expressly required hereunder or pursuant to any Security Document, the Security Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreement 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 and, if it so requests, it shall first be indemnified and/or secured to its satisfaction by the Holders 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 Security Agent shall in all cases be fully protected from claims by any Holders in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(h) No Security Agent shall be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Security Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating agree that such notice is a “notice of default.” The Security 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 VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 12.03).
(i) The Security 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 Security Agent. If the Security Agent resigns under this Indenture, the Issuer shall appoint a successor security agent. If no successor security agent is appointed prior to the intended effective date of the resignation of the Security Agent (as stated in the notice of resignation), the Security Agent may appoint, after consulting with the 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), a successor security agent. If no successor security 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 Security Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor security agent hereunder, such successor security agent shall succeed to all the rights, powers powers, privileges, protections, immunities, indemnities and duties benefits provided to the Security 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 each of the retiring Trustee (in each of its capacities) and the Security Agent to enter into and perform each of the ABL Intercreditor Agreement and Security Documents in each of its capacities thereunder.
(g) At all times when the Trustee is not itself the Security Agent, and the term “Company will deliver to the Trustee copies of all Security Agent” shall mean such successor security agent, and the retiring Security Agent’s appointment, powers and duties as Documents delivered to the Security Agent shall be terminated. After the retiring Security Agent’s resignation hereunder, the provisions and copies of this Section 12.03 shall continue all documents delivered to inure to its benefit and the retiring Security 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 Security Agent under pursuant to this IndentureIndenture and the Security Documents.
Appears in 1 contract
Security Agent. (a) By accepting a Note, each Holder will be deemed to have, authorized U.S. Bank Trustees Limited to serve Save as otherwise set forth in Clause 2.5 (Parallel Debt) the Security Agent for its benefit and shall hold or, as the case may be due to (i) perform legal restrictions, administer the duties and rights, powers and discretions that are specifically given to it under the Intercreditor Agreement and security constituted by the Security Documents securing such Indebtedness, together on trust (als Treuhänder) for the Finance Parties in accordance with any other incidental rights, power and discretions; and (ii) execute each relevant Security Document, waiver, modification, amendment, renewal or replacement expressed to be executed by the Security Agent in its name and on its behalfFinance Documents.
(b) Subject to the provisions of Article 7, the Security Documents and the Intercreditor Agreement, the Trustee, without the consent of the Holders, on behalf of the Holders, following the occurrence of an Event of Default that is continuing, may or may instruct the Security Agent in writing to take all actions it reasonably determines are necessary in order to (i) enforce any of the terms of the Security Documents or the Intercreditor Agreement; and (ii) collect and receive any and all amounts payable in respect of the Obligations under this Indenture. To the extent permitted by applicable law, only the Security Agent will have the right to enforce the Security Documents on behalf of the Trustee and the Holders.
(c) Except as provided in the Intercreditor Agreement or as otherwise directed by a First Lien Representative in accordance with the Intercreditor Agreement, the Security Agent will not be obligated (i) to act upon directions purported to be delivered to it by any Person, including any Holder; (ii) to foreclose upon or otherwise enforce any Lien; or (iii) to take any other action whatsoever with regard to any or all of the Security Documents, the Liens created thereby or the Collateral
(d) The provisions of this Section 12.03 are solely for the benefit of the Security 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. Each Holder agrees that any action taken by the Security Agent in accordance with the provision of this Indenture, the Intercreditor Agreement any Additional Intercreditor Agreement and/or the applicable Security Documents, and the exercise by the Security 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 Security Documents, the Intercreditor Agreement and any Additional Intercreditor Agreement, the duties of the Security Agent shall be ministerial and administrative in nature, and the Security Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Security Agent is a party, nor shall the Security Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement or otherwise exist against the Security Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Security 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.
(e) The Security Agent may perform any of its duties under this Indenture, the Security Documents or the Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), 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 Security Agent shall not be responsible liable for any failure, omission, or defect in registering, protecting or perfecting the security constituted by any Security Document or any security created thereby unless directly caused by its gross negligence or willful misconduct wilful misconduct.
(c) The Security Agent has no obligation to enquire into or check the title which the Obligors may have to their property over which security is intended to be created by any Security Documents or to insure any such property.
(d) If a disposal of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was asset subject to security created by a Security Document is made in good faiththe following circumstances:
(i) the Majority Lenders agree to the disposal;
(ii) the disposal is allowed by the terms of the Finance Documents and will not result or could not reasonably be expected to result in any breach of any term of any Finance Document;
(iii) the disposal is being made at the request of the Security Agent in circumstances where any security created by the Security Documents has become enforceable; or
(iv) the disposal is being effected by enforcement of a Security Document, the asset being disposed of will be released from any security over it created by a Security Document. However, the proceeds of any disposal (or an amount corresponding to them) must be applied in accordance with the requirements of the Finance Documents (if any).
(e) If the Security Agent is satisfied that a disposal is allowed under paragraph (d) above, the Security Agent must execute (at the request and reasonable expense of the Borrowers) any document which is reasonably required to achieve that release. Each other Finance Party hereby irrevocably authorises the Security Agent to execute any such document.
(f) Neither the Security Agent 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 for its own gross negligence or willful misconduct) or under or in connection with any Security Document or the Intercreditor Agreement or any Additional Intercreditor Agreement or the transactions contemplated thereby (except 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 Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related 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 All amounts received by the Security Agent under the Security Documents may be invested in the name of, or in connection with, this Indentureunder the control of, the Security Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents, the Intercreditor Agreement or Agent in any Additional Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement to perform its obligations hereunder or thereunder. Neither the Security Agent nor any of its Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(g) The Security 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 other Grantor), independent accountants and/or other experts and advisors investments selected by the Security Agent. The Security Agent shall not Additionally, those moneys may be bound to make any investigation into placed on deposit in the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenturename of, or other paper or document. Unless otherwise expressly required hereunder or pursuant to any Security Documentunder the control of, the Security Agent shall be fully justified in failing at any bank or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreement unless it shall first receive institution (including itself) and upon such written advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes terms as it determines and, if it so requests, it shall first be indemnified and/or secured to its satisfaction by the Holders 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 Security Agent shall in all cases be fully protected from claims by any Holders in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holdersthink fit.
(h) No Security Agent shall be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Security Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Security 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 VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 12.03).
(i) The Security 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 Security Agent. If the Security Agent resigns under this Indenture, the Issuer shall appoint a successor security agent. If no successor security agent is appointed prior to the intended effective date of the resignation of the Security Agent (as stated in the notice of resignation), the Security Agent may appoint, after consulting with the 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), a successor security agent. If no successor security 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 Security Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor security agent hereunder, such successor security agent shall succeed to all the rights, powers and duties of the retiring Security Agent, and the term “Security Agent” shall mean such successor security agent, and the retiring Security Agent’s appointment, powers and duties as the Security Agent shall be terminated. After the retiring Security Agent’s resignation hereunder, the provisions of this Section 12.03 shall continue to inure to its benefit and the retiring Security 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 Security Agent under this Indenture.
Appears in 1 contract
Security Agent. (a) By accepting Unless expressly provided to the contrary, and to the extent that under applicable law it is able to hold security created by a NoteTransaction Security Document as trustee, each Holder will be deemed to have, authorized U.S. Bank Trustees Limited to serve as the Security Agent holds the security created by the Transaction Security Documents on trust for the Relevant Creditors. If under applicable law it is not able to hold any security created by a Transaction Security Document as trustee, the Security Agent shall accept and hold that part in its benefit and own name (but on behalf of the Relevant Creditors) to (i) perform the duties and rights, powers and discretions deal with that are specifically given to it under the Intercreditor part in accordance with this Agreement and the Security Documents securing such Indebtedness, together with any other incidental rights, power and discretions; and (ii) execute each relevant Security Document, waiver, modification, amendment, renewal or replacement expressed Agent undertakes to be executed by the Security Agent apply that part as set out in its name and on its behalfthis Agreement.
(b) Subject to the provisions of Article 7, the Security Documents and the Intercreditor Agreement, the Trustee, without the consent of the Holders, on behalf of the Holders, following the occurrence of an Event of Default that is continuing, may or may instruct the Security Agent in writing to take all actions it reasonably determines are necessary in order to (i) enforce any of the terms of the Security Documents or the Intercreditor Agreement; and (ii) collect and receive any and all amounts payable in respect of the Obligations under this Indenture. To the extent permitted by applicable law, only the Security Agent will have the right to enforce the Security Documents on behalf of the Trustee and the Holders.
(c) Except as provided in the Intercreditor Agreement or as otherwise directed by a First Lien Representative in accordance with the Intercreditor Agreement, the Security Agent will not be obligated (i) to act upon directions purported to be delivered to it by any Person, including any Holder; (ii) to foreclose upon or otherwise enforce any Lien; or (iii) to take any other action whatsoever with regard to any or all of the Security Documents, the Liens created thereby or the Collateral
(d) The provisions of this Section 12.03 are solely for the benefit of the Security 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. Each Holder agrees that any action taken by the Security Agent in accordance with the provision of this Indenture, the Intercreditor Agreement any Additional Intercreditor Agreement and/or the applicable Security Documents, and the exercise by the Security 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 Security Documents, the Intercreditor Agreement and any Additional Intercreditor Agreement, the duties of the Security Agent shall be ministerial and administrative in nature, and the Security Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Notes Documents to which the Security Agent is a party, nor shall the Security Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement or otherwise exist against the Security Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Security 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.liable for:
(e) The Security Agent may perform any of its duties under this Indenture, the Security Documents or the Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), 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 Security 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.
(f) Neither the Security Agent nor any of its Related Persons shall (i) be liable for any failure in perfecting or protecting the security constituted by any relevant Transaction Security Document; or
(ii) any other action taken or omitted to be not taken by any of them under or it in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct) or under or in connection with any Security Document or the Intercreditor Agreement or any Additional Intercreditor Agreement or the transactions contemplated thereby (except 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 Issuer or any other Grantor or Affiliate of any Grantor, or any Officer or Related 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 Security Agent under or in connection with, this Indenture, the Security Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement to perform its obligations hereunder or thereunder. Neither the Security Agent nor any of its Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Security Documents, the Intercreditor Agreement or any Additional Intercreditor Agreement or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(g) The Security 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 other Grantor), independent accountants and/or other experts and advisors selected by the Security Agent. The Security 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. Unless otherwise expressly required hereunder or pursuant to any a relevant Transaction Security Document, the Security Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Security Documents or the Intercreditor Agreement 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 and, if it so requests, it shall first be indemnified and/or secured to its satisfaction by the Holders 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 Security Agent shall in all cases be fully protected from claims by any Holders in acting, or in refraining from acting, under this Indenture, the Security Documents or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(h) No Security Agent shall be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Security Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Security 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 VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 12.03).
(i) The Security Agent may resign at accept, without enquiry, the title (if any) which an Obligor may have to any time asset over which security is intended to be created by notice any relevant Transaction Security Document.
(ii) The Security Agent has no obligation to insure any such asset or the interests of the Relevant Creditors in any such asset.
(d) The Security Agent is not obliged to hold in its own possession any relevant Transaction Security Document, title deed or other document in connection with any asset over which security is intended to be created or evidenced by a relevant Transaction Security Document. Without prejudice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Security Agent. If the Security Agent resigns under this Indenture, the Issuer shall appoint a successor security agent. If no successor security agent is appointed prior to the intended effective date of the resignation of the Security Agent (as stated in the notice of resignation)above, the Security Agent may appointallow any bank providing safe custody services or any professional advisers to the Security Agent to retain any of those documents in its possession.
(e) Except as otherwise provided in any relevant Transaction Security Document, after consulting all moneys received by the Security Agent under the Relevant Finance Documents may be:
(i) invested in the name of, or under the control of, the Security Agent in any investment for the time being authorised by English law for the investment by trustees of trust money or in any other investments which may be selected by the Security Agent with the Trustee, subject to the consent of the Issuer Agent; or
(ii) placed on deposit in the name of, or under the control of, the Security Agent at such bank or institution (including any other Relevant Creditor) and upon such terms as the Security Agent may think fit.
(f) Each Relevant Creditor confirms its approval of each relevant Transaction Security Document of which it is to have the benefit and authorises and directs the Security Agent (by itself or by such person(s) as it may nominate) to execute and enforce the same as trustee (or agent) or as otherwise provided (and whether or not expressly in the names of the Relevant Creditors) on its behalf.
(g) In exercising any discretion to exercise a right, power or authority under this Agreement where either:
(i) it has not received any instructions from the Majority Creditors as to the exercise of that discretion; or
(ii) the exercise of that discretion is subject to clause 18.5(g)(iv) above, the Security Agent may do so having regard to the interests of all the Relevant Creditors.
(h) The Security Agent may (but shall not be unreasonably withheld and which shall not be required during a continuing Event of Defaultobliged to), a successor security agent. If no successor security agent is appointed and consented to by in the Issuer pursuant absence of any instructions to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated contrary and/or any relevant contrary requirement contained in this Agreement, take or refrain from taking such action in the notice exercise of resignation) the Security Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance any of its appointment as successor security agent hereunder, such successor security agent shall succeed to all the rights, powers and duties of under the retiring Security Agent, Finance Documents as it considers in its discretion to be appropriate and the term “Security Agent” shall mean such successor security agentAgent will not be liable for any action taken or not taken in by it under or in connection with any Finance Document.
(i) Notwithstanding any other provision in this Agreement, and the retiring Security Agent’s appointmentAgent may refrain from acting in accordance with instructions given in accordance with this Agreement or taking any action in the exercise of any of its rights, powers and duties under the Finance Documents until it has received such security as it may require for any cost, loss or liability (together with any associated VAT or other taxes) which it may incur in complying with such instructions or taking such action.
(j) Any consent or approval of the Security Agent may be given by it on such terms and subject to such conditions as the Security Agent shall be terminated. After the retiring Security Agent’s resignation hereunder, the provisions of this Section 12.03 shall continue to inure to its benefit and the retiring Security 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 Security Agent under this Indenturesees fit.
Appears in 1 contract
Samples: Intercreditor Agreement (Central European Media Enterprises LTD)
